Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698942250282.pdf (South Africa)
Monday, 12 December 2022] No 200—2022] FOURTH SESSION, SIXTH PARLIAMENT 1 PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA _____________________ ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS _____________________ MONDAY, 12 DECEMBER 2022 _____________________ TABLE OF CONTENTS ANNOUNCEMENTS National Council of Provinces 1.

Membership of Committees ............................................................................................. 2 TABLINGS National Assembly and National Council of Provinces 1.
Minister of Justice and Correctional Services .................................................................. 3 COMMITTEE REPORTS National Council of Provinces 1.

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Finance ............................................................................................................................. 5 Security and Justice ........................................................................................................ 24 Security and Justice ........................................................................................................ 47 2 ANNOUNCEMENTS National Council of Provinces The Chairperson 1.
Membership of Committees (1) The following changes were made to the membership of Select Committees of the National Council of Provinces: Select Committee on Cooperative Governance and Traditional Affairs, Water and Sanitation and Human Settlements (Co-operative Governance and Traditional Affairs, Water and Sanitation, Human Settlements) Appointed: Hon.

Mr F J Badenhorst (Western Cape – DA) Resigned: Hon.

Mr I M Sileku (Western Cape – DA) Appointed: Hon.

Mr C F B Smit (Limpopo – DA) Resigned: Hon.


Ms C Visser (North West – DA) Appointed: Hon.

Ms C Visser (North West – DA) – alternate to Hon.

Mr F J Badenhorst (Western Cape – DA) Select Committee on Security and Justice (Police, Justice and Correctional Services, Defence and Military Veterans, Home Affairs and International Relations and Co-operation) Appointed: Hon.

Mr F J Badenhorst (Western Cape – DA) Resigned: Hon.

Mr I M Sileku (Western Cape – DA) Appointed: Hon.


Mr C F B Smit (Limpopo – DA) Resigned: Hon.

Ms C Visser (North West – DA) Appointed: Hon.

Ms C Visser (North West – DA) – alternate to Hon.

Mr F J Badenhorst (Western Cape – DA) Select Committee on Petitions and Executive Undertakings Appointed: Hon.

Mr F J Badenhorst (Western Cape – DA) Resigned: Hon.

Mr I M Sileku (Western Cape – DA) Appointed: Hon.

Mr C F B Smit (Limpopo – DA) Resigned: Hon.

Ms C Visser (North West – DA) Appointed: Hon.


Ms C Visser (North West – DA) – alternate to Hon.

Mr F J Badenhorst (Western Cape – DA) 3 Select Committee on Transport, Public Service and Administration, Public Works and Infrastructure (Transport, Public Service and Administration, Public Works and Infrastructure, Planning, Monitoring and Evaluation) Appointed: Hon.

F J Badenhorst (Western Cape – DA) – alternate to Hon.

Mr J J Londt (Western Cape – DA) Resigned: Hon.


Mr I M Sileku (Western Cape – DA) – alternate Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour (Trade and Industry, Economic Development, Small Business Development and Tourism, Employment and Labour) Appointed: Hon.

Mr F J Badenhorst (Western Cape – DA) – alternate to Hon.

Mr J J Londt (Western Cape – DA) Resigned: Hon.


Mr I M Sileku (Western Cape – DA) – alternate Select Committee on Land Reform, Environment, Mineral Resources and Energy (Agriculture, Land Reform and Rural Development; Environment, Forestry and Fisheries, Mineral Resources and Energy) Appointed: Hon.

Ms C Visser (North West – DA) Resigned: Hon.

Mr C F B Smit (Limpopo – DA) Appointed: Hon.

Mr C F B Smit (Limpopo – DA) – alternate to Hon.


Ms C Visser (North West – DA) Select Committee on Public Enterprises and Communications (Public Enterprises and Communications) Appointed: Hon.

Ms C Visser (North West – DA) Resigned: Hon.

Mr C F B Smit (Limpopo – DA) Appointed: Hon.

Mr C F B Smit (Limpopo – DA) – alternate to Hon.

Ms C Visser (North West – DA) TABLINGS National Assembly and National Council of Provinces 1.
The Minister of Justice and Correctional Services (a) Proclamation No R. 95, published in Government Gazette No 47634, dated 02 December 2022: Amendment of Proclamation No.

R. 39 of 2020, in terms of the Special Investigating Units and Special Tribunals Act, 1996 (Act No 74 of 1996).
4 (b) Proclamation No R. 96, published in Government Gazette No 47634, dated 02 December 2022: Referral of matters to existing Special Investigating Unit: In respect of the affairs of the National Department of Water and Sanitation, in terms of the Special Investigating Units and Special Tribunals Act, 1996 (Act No 74 of 1996).

(c) Proclamation No R. 97, published in Government Gazette No 47634, dated 02 December 2022: Amendment of Proclamation No 11 of 2018, as amended by Proclamation No.
R. 3 of 2020, in terms of the Special Investigating Units and Special Tribunals Act, 1996 (Act No 74 of 1996).

(d) Government Notice No R. 2828, published in Government Gazette No 47634, dated 02 December 2022: Declaration of Peace Officers Members of the Border Management Authority (Border Guards), in terms of Section 334 of the Criminal Procedure Act, 1977 (Act No 51 of 1977).
(e) Government Notice No R. 2849, published in Government Gazette No 47669, dated 09 December 2022: Declaration of Peace Officers, in terms of Section 334 of the Criminal Procedure Act, 1977 (Act No 51 of 1977), investigators for the Investigative Directorate.

(f) Government Notice No R. 2850, published in Government Gazette No 47669, dated 09 December 2022: Regulations relating to summons and oath, in terms of the National Prosecuting Authority Act, 1998 (Act No 32 of 1998).
COMMITTEE REPORTS National Council of Provinces 5 [The following report replaces the Report of the Select Committee on Finance, which was published on page 26 of the Announcements, Tablings and Committee Reports, dated 09 December 2022] 1.

Report of the Select Committee on Finance on General Laws (Anti-money Laundering and Combating of Terrorism Financing) Amendment Bill [B18B - 2022] (National Assembly Section 75); dated 09 December 2022 1.
Introduction and background The General Laws Amendment Bill (GLAB) seeks to address deficiencies in at least 14 of the 20 Financial Action Task Force (FATF) recommendations identified in the Mutual Evaluation Report (MER) published in October 2021.

As explained in the memorandum on the objectives of the GLAB, South Africa was recently assessed by a joint International Monetary Fund (IMF), Eastern and Southern African Anti Money Laundering Group and the FATF assessment team.
National Treasury (NT) explained that South Africa rated poorly in the evaluation process, failing in 20 of the 40 FATF core recommendations on technical compliance and failing in all 11 effectiveness measures on immediate outcomes.

As a result, South Africa faces the risk of being greylisted by FATF at its February 2023 plenary.
The weaknesses identified in the mutual evaluation process highlighted the need for South Africa to have a robust Anti Money Laundering (AML), Combating the Financing of Terrorism (CFT) and proliferation regulatory framework.
According to the NT, FATF recommendations are doable matters relating to amending and enacting laws, whereas the immediate outcomes are more difficult and require that South Africa demonstrates the success of the implementation of legislation such as the number of successful prosecutions, the number of freezing orders of funds, policy and operational documentation.

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Public Participation Process On 02 November 2022, the Select Committee on Finance (SeCoF) received a briefing on the GLAB from the NT and the Financial Intelligence Centre (FIC).
On 23 November 2022, the Committee held public hearings and received a total of nine written submissions from the Cause for Justice (CFJ); the Congress of South African Trade Unions (COSATU); the NPO Working Group; the Hellen Suzman Foundation (HSF); Webber Wentzel; the NGO Law; Advocate Sello Maema of the Public Prosecutions in the North West Province; Bafokeng Senior Prosecutor, Advocate Mphaga Cavin Tjaro; and Freedom for South Africa.
On 25 November 2022, the NT and the FIC formally responded to the issues raised during the public participation process.

The Committee held meetings on 29 November 2022 and 07 December 2022, to further process the Bill.

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Overview of the objectives of the General Laws Amendment Bill The GLAB proposes to address deficiencies related to Customer Due Diligence (CDD), clarify the Financial Intelligence Centre’s (FICs) mandate to produce forensic evidence, improve supervision of the estate agency and the gambling sector, and extend the FIC’s powers to access information in registers kept by all organs of the state and address specific recommendations made in the MER.
This is done through amending various pieces of legislation, namely, the Trust Property Control Act (TPCA),1988 under the Minister of Justice and Correctional Services, the Companies Act, 2008, under the Minister of Trade, Industry and Competition, the Non-Profit Organisations (NPO) Act, 1997 under the Minister of Social Development, and the Financial Sector Regulation Act (FSCA), 2017, under the Minister of Finance.
The section below summarises the proposed amendments explained in the memorandum on the objectives of the GLAB and the NT and FIC presentations.

3.1 Mutual Evaluation Report findings requiring amendments to FIC Act 3.1.1 Enhancing the Customer Due Diligence requirements of Accountable Institutions According to the NT, the primary objective of the General Laws Amendment Bill is to address the deficiencies identified in the MER relating to the CDD measures contained in the FIC Act.
The proposed amendments to the FIC Act contained in the Bill do not substantially change the principles on which the CDD provisions are based but are expected to result in a stronger anti- money laundering regulatory framework.

For example, the definition of “beneficial owner” is amended to ensure that it encapsulates every natural person who is a beneficial owner of a client that is a legal person, partnership or trust “look through” principle.
3.1.2 Production of forensic evidence One of the ways identified to improve South Africa’s legal and institutional framework; and to strengthen the implementation of measures to combat money laundering, terrorism financing and proliferation financing was a clear mandate for the FIC to produce forensic evidence on the results of the analysis it produces that could be used as expert testimony in cases where this may be relevant in court proceedings.
3.1.3 Amendment of Schedule 2 The proposed amendments to Schedule 2 of the FIC Act aim to ensure effective supervision of the estate agency and gambling sector.

The proposed amendments seek to remove the references to the regulators of the estate agency and gambling sectors as supervisory bodies from Schedule 2 to the FIC Act.
3.1.4 FIC’s access to databases and registers held by an organ of state The Bill seeks to extend the powers of the FIC to request information or for access to any database held by any organ of the state as well as to have access to the information contained in a register that is kept by an organ of the state.

This is necessary to ensure that the FIC has 7 access to a sufficiently wide range of information that is held in the public sector to perform its functions effectively.
The objectives of the FIC will therefore be expanded to include the identification of persons involved in money laundering activities, terrorist financing and related activities, and proliferation financing activities to produce forensic evidence relating to the flow of financial transactions.
This will allow the FIC to share information with the Auditor General (AG) office by amending “an investigative division in an organ of state” to read a national department to remove any ambiguity as to whom the FIC may share information with.

New powers for the FIC will include the power to enter into Public-Private Partnerships (PPPs) to enable it to achieve its objectives and perform its functions effectively.
3.2 Addressing specific recommendations in the Mutual Evaluation Report The Bill seeks to address several recommendations in the MER through amendments to the NPOs Act, of 1997, the TPCA, of 1998, the Companies Act, of 2008, and the FSRA, of 2017.
These recommendations are explained below: 3.2.1 Amendments to the Trust Property Control Act Proposes to amend the TPCA to provide the legal framework for beneficial ownership information in respect of trusts require trustees to hold information on agents and service providers to trusts; keep information which they obtain up to date and accurate; provide for broader grounds for disqualification to be a trustee, and for offences for trustees in respect of specified breaches of the TPCA.
3.2.2 Amendments to the Non-Profit Organisations Act Proposes an amendment to the NPO Act to implement policy recommendations to improve the oversight of its broader NPO sector; apply controls of the NPO Act to all NPOs, not just NPOs that register voluntarily; and provide for offences and penalties in respect of specified contraventions of the NPO Act.
3.2.3 Amendments to the Companies Act Proposes an amendment to the Companies Act to provide for a legal framework for beneficial ownership information in respect of companies to provide for a requirement that companies must keep securities registers on shareholding up to date; require that companies keep accurate and up-to-date information on their beneficial owners; provide for a comprehensive mechanism through which the Companies and Intellectual Property Commission (CIPC) can keep accurate and updated beneficial ownership information; and expand the grounds for disqualification to be a director of a company to include convictions for offences relating to money laundering, terrorist financing or proliferation financing activities.
3.2.4 Amendments to the Financial Sector Regulation Act Proposes an amendment to the FSRA to provide an enabling framework for financial sector regulators to test the fitness and propriety of beneficial owners of financial institutions as part of market entry controls and on an ongoing basis; define ‘‘beneficial owner’’ in respect of financial institutions; provide a legal mechanism through which financial sector regulators can test the honesty and integrity of beneficial owners of financial institutions and require them to provide relevant information regarding their beneficial ownership; provide a legal mechanism through which financial sector regulators can require financial institutions to identify and verify their beneficial owners and require them to provide relevant information regarding their beneficial owners, and enable financial sector regulators to take specified action against beneficial owners who contravene or are likely to contravene a financial sector law.
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Key issues raised during the public participation process The concerns raised by the stakeholders are about inadequate public participation process; opposition to the mandatory registration of NPOs and prescribed administrative sanctions in the NPO Act; irreconcilability of the B-version of the GLAB, the draft NPO Amendment Bill and the administrative capacity of the national Department of Social Development (DSD), which has a current backlog of 6 041 registration applications; the definition and disclosure of beneficial ownership; and that the provisions in section 56 of the Companies Act that do not provide for the disclosure of or access to this information.
Most recommendations were made on the NPO Act, and include; that the Committee should thoroughly investigate and scrutinise the proposed NPO amendments to ensure that the fundamental rights and freedoms are indeed protected; the NPO registration should remain completely voluntary and the “prescribed administrative sanctions” should be specified; and the exclusion of the NPOs that are already registered as Public Benefit Organisations (PBOs) with the South African Revenue Service (SARS) from being deemed “at-risk NPOs” that need to register with the DSD.
Other recommendations include a general extension of the call for comments by at least a further 10 days; that the legislative framework should utilise a single broad definition of “beneficial owner” within the FIC Act; the secondary legislation such as the Companies Act and the TPCA should not seek to alter or expand the definition, as this introduces regulatory uncertainty and creates loopholes that can be exploited; making beneficial ownership information publicly available so that various role-players can continue to assist in the fight against tax evasion and corruption; training of prosecutors and the police with the necessary skills to implement the legislation; and extend the definition of Accountable Institutions (AIs) as tabled in schedule 1 of the FICA 38 of 2001, by now including a trust, trustees and or beneficial owners, also Attorneys, Auditors, Accountants and Banks.
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Summary of submissions made 5.1 Cause for Justice The CFJ commented only on the NPO Act.
The CFJ raised concerns that public participation in the legislative process was inadequate as the call for comments was published before the B-version of the Bill was made available; there is a need for and justification of the legislative intervention to avoid unforeseen and unintended 9 detrimental consequences; the likelihood of the legislative amendments achieving their purpose; and the existence of less restrictive means to achieve the legislative purpose.
CFJ noted that the Bill seeks to amend certain sections of the NPO Act, including making registration mandatory for a limited subset of “at risk” NPOs.

CFJ raised a concern that the proposed amendments will impose legal obligations and limit the constitutional rights of affected NPOs, their governors and office-bearers, the majority of whom are unlikely to ever be involved in money laundering or the financing of terrorism.
CFJ sought clarity on the level of assurance that making registration under the NPO Act compulsory for affected NPOs, will translate to preventing money laundering enterprises in the NPO sector; complaining that otherwise, the amendments will serve no legitimate purpose and place an unconstitutional burden on affected NPOs.

Another concern raised was that the additional burden may cause many religious organisations to cease operations.
CFJ reiterated that religious organisations do tremendous good public benefit work, impacting millions both locally and abroad, and often for the benefit of society’s socio-economically vulnerable and marginalised.

If the proposed amendments will force these organisations to cease operations, much harm will be suffered by South African society.
CFJ further submitted that an important and central aspect of a successful NPO registration and regulation system is the support and oversight provided by the NPO Directorate, which is situated in the DSD.
CFJ requested the general extension of the call for comments for at least a further 10 days; and that the Committee should thoroughly investigate the proposed NPO amendments, by requesting the appropriate government departments to furnish it with sound evidence and a rational basis for why and how the specific proposed amendments in the Bill will translate into effectively addressing the identified public ills.
CFJ urged the Committee to scrutinise any proposed wording to ensure that the fundamental rights and freedoms are indeed protected.

CFJ emphasised that voluntary registration is its preferred option and that it does not support the compulsory registration of any NPOs.
It prefers and supports registration remaining completely voluntary or registration being made compulsory for a rationally identified, constitutionally defensible, appropriately limited subset of ‘at-risk’ NPOs only and that it should be specified what the “prescribed administrative sanctions” are or identify an official authorised to prescribe such sanctions in the Regulations.
5.2 Freedom of Religion South Africa The Freedom of Religion South Africa commented on the changes to the NPO Act proposed in the B-version of the GLAB regarding Clause 11’s proposal about mandatory registration for “at-risk NPOs”.
The B-version of the Bill proposed mandatory registration with the DSD for NPOs seen as “at-risk NPOs” and these are “any NPO that makes donations to individuals or organisations outside of the Republic’s borders”, and “any NPO that provides humanitarian, charitable, religious, educational or cultural services outside of South Africa’s borders.
The Freedom of Religion South Africa quoted the FATF Recommendation, in footnote 28 to paragraph 6(b)(i) of the FATF’s Recommendation 8 (page 61), which states that specific 10 licensing or registration requirements for counter-terrorist financing purposes are unnecessary for NPOs that are already registered with tax authorities and monitored in the context of qualifying for favourable tax treatment such as the PBOs who successfully applied for, and are monitored for tax exemptions.
The Freedom of Religion South Africa recommended that the Bill exclude the NPOs that are already registered as PBOs with SARS from being deemed “at-risk NPOs” that need to register with DSD.

This will lessen the burden on the government and NPOs without falling foul of FATF’s recommendations.

It will also prevent numerous religious organisations from being subjected to additional administrative/financial burdens which they may find difficult to cope with.
5.3 NPO Working group The NPO Working Group responded to the updated B-version of the Bill.
The Working Group supports the multi-pronged and tailored approach to beneficial ownership and appreciated consideration given to privacy rights; the parallel process to conduct a full scan of the Non- Governmental Organization (NGO) sector and assess risks; a move of the NPO registry out of the DSD to be an independent but public, properly funded, credible and operational structure; and that mandatory registration be restricted to the ‘at risk’ category of non-profits as defined in the amended section 12 of the B-version of the Bill (no knitting clubs are required to register).
The NPO Working Group submitted that the FIC registration suggested as an alternative to compulsory NPO registration for at-risk non-profits is still its preferred option.

The NPO Working Group submitted its remaining concerns, and these are discussed below.

5.3.1 The inappropriateness of the DSD to accommodate the NPO directorate The current NPO Directorate is constrained and restricted by the operations and processes of the DSD.
The directorate does not have the power to advertise or fill vacant posts or source funding for posts that are, to date, unfunded.

5.3.2 Staffing and skills The existing staff at the NPO Directorate require re-training to operate the anti-fraud oversight required to implement the FATF guidelines.

They do not possess the skills to carry out their current functions.

Some of the skills set required include auditing, analytical, financial, forensic, governance, legal and inspector to regulate compliance.
5.3.3 Systems and Infrastructure The existing IT systems and infrastructure require overhauling and upgrading, as they do cannot perform the basic search functions.

The current system is insecure, unstable, and poorly maintained.

The NPOs often have to resort to sending annual reports through registered mail to the National Office in Pretoria or an email address.

Even when reports are digitally lodged, data is not able to be retrieved, separated and stored appropriately.
The upgraded system of the NPO Directorate should be linked to other departments such as SARS, CIPC, Home Affairs and banks.

11 5.3.4 Migration to e-certification The NPO Directorate currently operates, for the most part, on a paper-based system with printed certificates.

Existing legislation empowers the NPO Directorate to begin the transition towards issuing electronic NPO certificates and alleviate the barriers associated with operating on a solely paper-based system.
5.3.5 Move to an independent Directorate The DSD focuses on social services and does not have the skills for the full scope of the work of non-profits in South Africa.

It is therefore the inappropriate department to house the NPO directorate.
5.3.6 Recommendations • The NPO transition to e-certificates should occur immediately, by proclamation in the Government Gazette; • The NPO Directorate must clean up and update the register, removing non-compliant or non-existent organisations by June of 2023, and demonstrating progress by February 2023.

• The NPO online reporting system must be fixed and stable by March 2023.
• The NPO Directorate must create and fill the following key positions by June 2023, three Lawyers, Auditors and financial skills, each.

• The existing information and technology systems must be inspected by independent technical experts to ensure the security and stability of the NPO systems and data protection capability to protect the most vulnerable individuals served by non-profits.
5.4 Helen Suzman Foundation The HSF commented on the urgency to ensure compliance with the Financial Action Task Force (“FATF”) recommendations and the importance of proper public consultation.

The HSF raised two concerns about the proposed amendments, namely, the irreconcilability of the B- version of the GLAB and the draft NPO Amendment Bill and the DSD.
According to the HSF, the B version of the GLAB and the draft NPO amendment Bill appear to follow two concurrent processes; with different registration requirements, where the B version of the GLAB refers to, “makes donations to individuals or organisations outside of the Republic’s borders” and “provides humanitarian, charitable, religious, educational or cultural services out of the Republic’s borders”, and the draft NPO amendment Bill, Section 2(f) states that “facilitating voluntary registration of NPOs and compulsory registration for foreign organisations operating within the borders of the Republic of South Africa”; Section 12(1) states that “any NPO that is not an organ of state may apply to the Office of the Registrar for registration”; and Section 12(5), states “any NPO, including foreign NPOs that intend to operate business within the Republic must be registered in terms of this Act before operating and shall be subjected to the provisions of this Act and any other laws of the Republic”.
The HSF raised concerns about the administrative capacity of the DSD, which has a current backlog of 6 041 registration applications and the fact that the FATF Report stated that the DSD is not able to monitor or investigate those NPOs currently registered, while Section 13 12 “deemed” registration is not the answer.

The HSF believes that the amendments will not achieve their purpose.
5.5 The NGO Law The NGO Law submitted that the NPO Directorate is an inappropriate body to collect the data required for the oversight of the at-risk class of non-profits.

The NPO Law emphasised that its preferred outcome is that the compulsory registration of a limited and defined class of non- profits takes place not under the NPO Act, but under FICA, as a “reporting institution”.
However, if this is not accepted, the pre-requisite for limited-ambit compulsory registration as an NPO would need to be that, (1) the NPO Directorate should keep a list of organisations separate from those of voluntary NPO registrations; so that they can be separately tracked, (2) the NPO Directorate systems are substantially upgraded and reinforced for security, stability and to allow data required to be found and extracted, (3) the NPO Directorate is relocated as structure independent of DSD, and (4) the staffing and skills at the NPO Directorate are overhauled and upgraded.
People with legal and audit skills should be on the team.

The NGO Law proposed the addition of clauses in the Companies Act as an alternative to compulsory NPO registration.

This will bring the class of organisations under the detailed regulatory requirements of the Companies Act into the public visibility that requires the annual reporting on financials and details of compliance which the Companies Act and regulations require.
The proposed amendment requires the registration with CIPC also of the foreign equivalents of voluntary associations which may be carrying out non-profit activities in South Africa.

This proposed amendment is needed to support compulsory registration under FICA or the NPO Act.

5.6 COSATU COSATU and the South African Clothing and Textile Workers Union (SACTWU) support the Bill and believe that the Bill is a positive step by the government to address gaps and weaknesses in the existing legislation.
The following concerns were raised: 5.6.1 Amendments to the definition of beneficial ownership The Bill, in some instances, is not sufficiently clear enough about the definition and disclosure of beneficial ownership.

By its internationally accepted definition, a beneficial owner should always mean a natural person and nothing else.

Without a reference to a natural person, only the first layer of ownership may be pierced and the actual owner may never be revealed.
COSATU and SACTWU believe that the legislative framework should utilise the single broad definition of “beneficial owner” within the FIC Act; and that secondary legislation such as the Companies Act and the TPCA should not seek to alter or expand the definition, as this introduces regulatory uncertainty and creates loopholes that can be exploited.
5.6.2 Amendments to publishing information COSATU noted with disappointment that the Bill does not seem to seek to make beneficial ownership registers publicly available.

Clause 53 of the Bill refers to making annual returns available electronically but it is not clear that this would mean that such annual returns would then be publicly available.
Also, FATF has listed the requirement of making beneficial 13 ownership information publicly available in their Guidance on Transparency and Beneficial Ownership as part of understanding the risk associated with legal persons, particularly in respect of companies’ registers.

COSATU believes that by making beneficial ownership information publicly available, unions, shop stewards, workers, civil society and journalists can continue to assist in the fight against tax evasion and corruption.
Trusts beneficial ownership records at the Master’s offices should also mirror how companies’ records are envisaged in the Bill to be published and made available annually and when updated.

5.6.3 Amendments to personal data COSATU submitted that, in South Africa, privacy and data protection concerns are given legal effect through the Protection of Personal Information Act (POPIA).

This Act may be used as an excuse to block the publication of beneficial ownership data.
Yet, sections 37 and 38 of POPIA list several grounds on which processing of personal information is not a breach of the processing conditions in the Act.

Part of those grounds includes where the public interest outweighs the interference with privacy rights, prevention, detection and prosecution of offences, fostering compliance with legal provisions, to protect the public against financial loss due to dishonesty, and malpractice.
Any one of these grounds could be relied upon to substantiate publishing beneficial ownership data when concerns are raised regarding privacy rights and data protection laws.

5.6.4 Amendments to updated records COSATU noted that Clause 55 of the Bill proposes the addition of two subsections to section 56 of the Companies Act, which would require filing additional notices within a “prescribed period”.
These proposed additions introduce important reporting obligations for companies in respect of their beneficial ownership information.

However, these provisions do not provide for the disclosure of or access to this information.

While it is not clear what that prescribed period will be until it is prescribed in terms of the Act, it seems clear to COSATU that it will be more regular than annual.
COSATU argues that this should be at least quarterly and recommends that provisions for disclosure of this information be added to the Bill or Regulations.

5.7 Advocate Mphaga Cavin Tjaro Advocate Tjaro submitted that the Bill should extend the definition of Accountable Institutions as tabled in schedule 1 of the FICA 38 of 2001, by now including Trust, trustees and or beneficial owners, thus now closing the long lacuna or loophole used by syndicates to launder and hide proceeds of crime.
Advocate Tjaro supports the further inclusion of Churches as NPOs as Accountable Institutions and said that it is long overdue given the proliferation and mushrooming of churches as vehicles used to wash dirty money and hide proceeds of crime.
Advocate Tjaro recommended that the Estate Agents and Car dealerships as Reporting Institutions defined in schedule 1 of FICA, must be strictly monitored for strict compliance with their reporting duty of any suspicious transactions by their clients given almost all criminals launder their dirty money as proceeds of crime by buying luxurious houses and 14 expensive cars.
Furthermore, Attorneys, defined as Accountable Institutions in schedule 1 of FICA, must also be strictly monitored for their strict compliance with their reporting duties in respect of suspicious transactions or money received from their clients exceeding the stipulated threshold because many criminals use or collude with attorneys to launder and or hide proceeds of crime.
Similarly, Auditors, Accountants and Banks as Accountable Institutions must also be strictly monitored for their strict compliance with their reporting obligations of any suspicious transactions of their clients or departments 5.8 Advocate Sello Maema Advocate Maema submitted that the Bill makes a brilliant attempt to address the weaknesses that were identified by the joint IMF Group which assessed South Africa’s regulatory framework’s compliance with international standards to ensure that our country enacts legislation to ensure that international standards to combat money laundering and financing of terrorism activities are dealt with.
While the enactment of appropriate legislation may be the beginning of compliance with international standards, Advocate Maema’s view is that the crucial step is the training of prosecutors and police in the implementation of the legislation, to equip the police with investigative skills to investigate these complicated provisions and enable the prosecutors to develop charge sheets and guide investigations and to develop the law.
5.9 Weber Wentzel Weber Wentzel’s submission proposed technical amendments to the Companies Act; the TPCA; and the NPO Act.
These proposed technical amendments refer to, (1) the introduction of a new definition of "affected company", that it should be considered whether a reference to section 2(2)(d) should be included in this definition, (2) the introduction of a new definition of "beneficial owner", that the concept of "control" as used in the definition, should be expressly linked to sections 2 and 3 of the Act, (3) amendment of the wording of subsection (8)(b)(v) which relates to disqualification of the director of a company on the grounds of misconduct, (4) clarification of the term "effective control" to provide certainty or some guidance, (5) insertion of the phrase "the end of" at the beginning of subsection (1B)(b), and (6) amendment of the wording of subsection 1C to make it clear when such a decision of the Security Council of the United Nations has been "taken".
On Trust accounts, Weber Wentzel proposed the following technical amendments, (1) the heading of section 10 should be amended to reflect the expanded ambit of the section, to read "Trust account and disclosure to accountable institutions”, (2) amendment of section 19 about failure by a trustee to account or perform to provide that a trustee will not be guilty of an offence in terms of section 11A(1) if a trustee can show that the trustee took all reasonable steps to establish the beneficial ownership of the trust.
Weber Wenzel noted that section 19(2)'s proposed introduction of these new offences for failure to comply with an administrative obligation embodied in sections 10(2), 11(1)(e) or 11A(1)) is likely to disincentivise persons to act as trustees.

On removal of trustees, in line with the gender-neutral amendments proposed to be made to section 20(2) of the Act by the Bill, it is submitted that section 20(2) should be amended.
15 Weber Wentzel further noted that the proposed amendments now make it mandatory for certain NPOs to register under the Act and that it would be helpful to clarify that this registration is required notwithstanding other forms of registration NPOs may already have.

It should also be clarified that the NPO registration under the Act will be in addition to any form of existing registration and that NPOs will not have to de-register from existing forms of registration.
In addition, it is important to clarify whether NPOs are required to have a constitution in addition to their existing governing documents.

It should also be clarified that an NPO that has applied for registration will be deemed to be registered with effect from the date of submission of the application.
On amendment of section 18, Weber Wentzel submitted that the proposed new section 18(1)(bA) should be amended to read as follows: "prescribed information about its office- bearers, control structure, governance, management, administration and operations of registered NPOs”.
In section 24, about the register of NPOs, it is submitted that subsection (4) should be amended to read as follows: "An NPO must make the information referred to in section 18(1)(bA), and the director must provide access to make the information in the register referred to in subsection (1)(d), available to any person as prescribed”.

6.
6.

Responses by the National Treasury to issues raised by the stakeholders On a concern about the alignment of the NPO Amendment Bill with the B-version of the GLAB, the NT responded that the NPO Amendment Bill is at a draft stage and has not yet been tabled in Parliament.

It further explained that while the GLAB was developed to address specific deficiencies identified in the MER, further development of the NPO Amendment Bill will be based on the NPO Act as amended by the GLAB.
; and will address the issues raised around the alignment as well as the additional issues not addressed in the GLAB.
In response to the proposed compulsory registration of NPOs and recommendations made, the NT said that PBOs are currently monitored for annual submission of tax returns and compliance with the Income Tax Act but SARS does not monitor specific funds expended on activities conducted outside South Africa, except in the instances of s.18A approved entities where funds may not be expended outside of South Africa.
Further clarity was provided that NPOs that will be required to register under the NPO Act will be subject to the requirements of the NPO Act and that the objective of introducing the register of NPOs is to have a unified register for the categories of NPOs that are identified as being at potential risk and that have to comply with the NPO Act.
On the capacity of the DSD to accommodate the NPO directorate and other concerns raised, the NT clarified that the requirements for NPOs under the NPO Act for which they are supervised under the Act, are to have a constitution that meets the requirements of section 12(2), to keep accounting records, to draw up annual financial statements and balance sheets, to have annual audits of its financial statements and its activities under its constitution.
There is no other entity or agency that has the legal mandate to monitor NPOs.

It was further explained that capacitating the DSD to be effective as a supervisor of compliance with the NPO Act is key to demonstrating the expected FATF outcomes and that the amendments to the NPO Act are necessary to address some of the technical compliance deficiencies identified.
16 On access to beneficial ownership information, NT said that access to the various registers will be addressed through regulations, after consultation with all stakeholders, and will be a staged process in line with the approach by most other FATF-compliant jurisdictions.

Regulations will set out the details around access to the information contained in the register and the Bill provides for the regulations in the different laws to be made, after consultation with the Minister of Finance and the FIC.
NT envisages that the registers will be accessible to competent authorities and obliged entities having CDD obligations, on a tiered access basis, taking into consideration the POPIA and the Promotion of Access to Information Act (PAIA) and international law.

Further clarity was provided that the FATF left open access to the general public for countries to decide and in South Africa, this decision has not yet been made as it requires full consultation with all stakeholders.
NT mentioned that guidance will be provided regarding the term "effective control" in the definition of the “beneficial owner” to ensure consistent application of the term “beneficial owner” in the different Acts and to provide certainty.
On failure by Trustees to perform duties, NT explained that the forthcoming Regulation of Trusts Bill will propose to provide that a trustee that willfully fails to establish and keep a register of the beneficial owners, or that knowingly keeps false information of a beneficial owner, is guilty of an offence.

It will also provide sanctions for the wrong information to a trustee.
NT committed to timeously providing guidance and awareness-raising initiatives regarding the training of prosecutors, police and other role players.
NT clarified that the use of the term “prescribed” in “administration sanctions” in the NPO Act denotes that regulations will be made by the Minister of DSD in respect of administrative sanctions, such as the types of administrative sanctions and maximum financial penalty; and that consideration potentially will be given to addressing administrative sanctions further in the NPO Amendment Bill.
It was further explained that over and above the financial penalties in respect of the FIC Act, there are other administrative sanctions for non-compliance such as restricting business activities or suspension.

Also, the penalties are per offence so if there are several contraventions, the penalties will be commensurate with the number of contraventions.
The penalty will differ based on the circumstances of each non-compliant natural person or entity and various factors that are typically taken into account such as the effectiveness of the fine to decide the quantum of the fine.

With regards to foreign non-profit companies and foreign trusts, The NT said that the CIPC does not support this proposal, as this would involve taking over the mandate of another authority.
The CIPC maintains that it will continue to cater for external non-profit companies as far as they meet the criteria set out in section 23.

The NT does not believe that this is a matter which can be addressed in the current GLAB.

The proposal to revise the definition of foreign companies is therefore not supported.

The term “control” in the Companies Act will take on the ordinary dictionary meaning and be interpreted in a manner consistent with FATF guidance and international law.
However, additional domestic guidance will be considered to assist in the consistent application of the term in the different Acts.

17 On the constitutionality of the amendments to the NPO Ac, the NT obtained a legal opinion from the Senior Counsel, to advise on the provisions in the tabled Bill proposing mandatory registration of NPOs.

The opinion examined the constitutional rights to freedom of association, freedom of religion, and the rights of cultural and religious organisations.
It examined clause 10 of the tabled B-version of the Bill and concluded that clause 10 is not liable to an interpretation which confers a power to “interfere with the religious organisation’s doctrines/tenets/beliefs”.

Clause 10 provides that an NPO “must be registered”, and refers to the mandatory and discretionary content of an NPO’s constitution.

The clause confers no discretionary power on the functionary responsible for registering an NPO.
It advises that all registration requirements should be in the Bill and recommends the removal of the provision that the Minister may prescribe additional registration requirements.

This was proposed to, and adopted by the Standing Committee on Finance (SCoF), and the B-version of the Bill passed by the NA does not contain the provision.

The opinion advises that transitional arrangements about registration should be specified in the principal Act, and that is now the case in the revised Bill.
The B-version of the Bill entails that registration will be subject to the objective requirements and processes set out in sections 12 to 14 of the NPO Act.

The NT does not support the proposal that NPOs be registered under the FIC Act instead of under the NPO Act.
It was explained that the requirements that would apply to NPOs if they were required to register as accountable institutions under Schedule 1 or a reporting institution under Schedule 3 of the FIC Act would not be appropriate or aligned with the scheme of the FIC Act.

Also, those NPOs that would be required to register under the FIC Act would be regulated and supervised differently from those who voluntarily register under the NPO Act, which would be undesirable.
The NT noted the comments and proposals submitted and the concerns raised and committed to seriously consider these comments in the NPO Act Amendment Bill process.

The NT further committed to continue engaging the DSD regarding the capacitation of the NPO Directorate.

7.
7.

Committee's observations 7.1 7.2 The GLAB seeks to address the deficiencies identified in the FATF evaluation process by amending the TPCA, the Companies Act, and the FSRA to provide for beneficial ownership information in respect of trusts, companies and financial institutions, respectively, and provide offences and penalties in respect of contraventions; amend the NPOs Act to improve oversight over all NPOs, not just the voluntarily registered ones; and clarify the mandate of the FIC.
The stakeholders raised several technical issues on the wording and definitions of certain provisions of various Acts.
Key substantive issues raised include the inadequate public participation process; general opposition to the mandatory registration of NPOs; the constitutionality of the proposed NPO amendments; the alignment of the B-version of the GLAB and the draft NPO Amendment Bill; the administrative capacity of the 7.3 7.4 7.5 7.6 7.7 7.8 18 DSD to effectively oversee NPOs; access to beneficial ownership information; and training of the relevant officials to ensure effective implementation of the GLAB.
The Committee notes that, despite the concerns raised, the majority of the stakeholders support the objectives of the GLAB and acknowledged its crucial importance.

The Committee notes the NT’s comprehensive responses on the constitutionality of the Bill and the legal opinion they obtained from a Senior Counsel that the Bill is constitutionally sound.
Parliament’s Legal Services Unit considered the NT’s legal opinion and NT’s further arguments on the constitutionality of the Bill and concluded that the Bill is constitutional.

The Committee notes NT’s commitment that it will ensure the effective implementation of the Bill and that the FATF process will serve as an additional monitoring mechanism as it does not only require the amendment of the laws but also that the outcomes are effectively met.
The Committee notes the stakeholder’s general opposition to the mandatory registration of NPOs, the prescribed administrative offences and the recommendations made.

NT argues that greylisting will affect the NGO sector; and that it agrees with the stakeholders that it is important to ensure a registration regulation mechanism that would work for the NPO sector and achieve the intended objectives of the Bill.
The Committee notes the stakeholder’s concerns about the DSD’s administrative capacity to manage the NPO sector, including a 10-year backlog in registrations and the comments in the FATF’s report that South Africa cannot monitor NPOs.

The Committee notes the stakeholder’s concerns about the DSD’s acknowledgement of its current capacity and IT systems challenges; and that the expected additional responsibilities brought by the proposed amended NPO Act will require additional capacity.
The Committee further notes the DSD and NT’s commitment that they will work together with the FIC to ensure effective implementation of the legislation and that where there is a need, the DSD will collaborate with and negotiate for the deployment of critical skills from other institutions and government departments.
7.9 On the misalignment of the B-version of the GLAB and the draft NPO Amendment Bill, the Committee notes that NT will continue to engage with the DSD and ensure that the objectives and budgets of the two Bills are aligned before the NPO bill is published and tabled before Parliament.

7.10 The Committee notes the recommendation to make beneficial ownership information publicly available to enable various role-players to assist in the fight against tax evasion and corruption.
The Committee welcomes the NT’s commitment that the relevant 19 stakeholders will be furnished with the additional information requested and that the process will be transparent and allow the public to effectively engage.
7.11 The Committee notes that the NT has a Memorandum of Understanding with all the relevant entities to ensure a coherent system of beneficial ownership and that the FIC has a similar arrangement with the relevant government agencies such as the Master’s Office, the CPIC and the Department of Justice and Correctional Services.
7.12 The Committee notes the initial objections in the SCoF process by religious organisations related to the constitutionality of the proposed amendments to the NPO Act, particularly on the NPO Directorate of registrations.

NT said that it carefully considered the issues raised, including obtaining a legal opinion from its Senior Counsel and making the provisions related to registrations and de-registrations explicit in the legislation.
In response to a written submission by the Joshua Generation Church on the day before the Committee is to vote on the Bill, NT’s response included noting that: “The scope of nonprofit organisations that would be required to register in terms of the NPO Act has been significantly reduced in the amended version of the Bill.

Only nonprofit organisations that send funds or perform activities or provide services outside of South Africa would be required to register.
In response to concerns raised about the exercise of powers of the Directorate of Nonprofit Organisations in terms of the NPO Act regarding registration and cancellation of registration being exercised in a manner that potentially infringe on rights of freedom of association and freedom of religion and rights of cultural and religious organisations, wording has been included in the updated version of the Bill to clarify the limited scope of the powers.
Registration can only be refused if requirements for registration have not been complied with, and after the applicant has been notified that there is not compliance with a requirement and the noncompliance has not been rectified after having been given an opportunity to do so.

It is also explicitly stated that a nonprofit organisation may only be deregistered if it has not complied with a requirement in the Act or its constitution.
It is also now explicitly specified that the director of nonprofit organisations may only require a nonprofit organisation to amend its constitution only if the constitution did not address the matters that are required to be addressed in terms of section 12.

This also ensures that the powers or the director are clearly defined and limited.
Failing to comply with specified provisions in the NPO Act now would not be offences, as was proposed in the tabled version of the Bill, they would now be subject to administrative sanctions, and would not be offences.” The Joshua Generation Church was invited to present an oral submission to the Committee today, but their representative said that they did not want to.

7.13 The Committee reiterates its dissatisfaction with the NT for its late introduction of the Bill to parliament.
It also repeats that it utterly refutes the false allegations by some in 20 the media that the Finance Committees in Parliament have been holding up the process of finalising this legislation.
7.14 However, the Committee recognises that it was just slightly over a year ago – in October 2021 - when the FATF published the MER, that the NT began engaging with different departments, Cabinet, and conducted its participation process and it had a very onerous task to get the Bill introduced to Parliament in August 2022.
7.15 The Committee believes that, ultimately, civil society stakeholders had more than enough time to participate in the processing of the Bill, and, in fact, did so until the very last meeting before the Member of Parliaments’ formal voting on the Bill.

The Committee agreed to meet with stakeholders on a Saturday afternoon and most of a Sunday, but they felt it was not necessary.
Among the issues raised on public participation were the following: 7.15.1 While it is important to give the public adequate notice beforehand, of a public hearing, this alone does not determine the quality, value or effect of public participation.
It is the extent of participation in the processing of a Bill after the formal date of a public hearing, how seriously a Committee takes the views of civil society stakeholders and the number of hours spent on a Bill, among other considerations, that also determine the quality of public participation.
7.15.2 Public participation in the Bill began with the National Assembly’s SCoF public hearings of 11 October 2022 and 25 October 2022, and through the SeCoF process from 23 November 2022 until 7 December 2022.

7.15.3 There is no evidence to suggest that the quality of the arguments presented by the stakeholders would have been any different had they had more time to submit their initial presentations to the Committee.

When this was suggested to the stakeholders, none of them responded to say otherwise.
7.15.4 Most of the changes made to the Bill by SCoF emerged from submissions by civil society stakeholders.

The stakeholders have, in any case, already significantly influenced the shape of the Bill through the SCoF process, even if not all of their 21 proposals were accepted.

The stakeholders agree that there have been significant improvements to the Bill since it was introduced to the National Assembly.
7.15.5 This is a section 75, not section 76, Bill and the SCoF plays the main role in processing it, and it is in that process that stakeholders mainly had to influence this Bill.

7.15.6 There are special circumstances that have required this Bill to be processed before Parliament ends this year and the time allocated for its processing has to take into account these special circumstances.

7.16 A Copy of this report was also sent to civil society stakeholders for their comments.
7.17 All the participating civil society stakeholders said that they were satisfied with the public participation process.

7.18 The ability of participating civil society stakeholders to win support for their proposals on policy and legislation processed by parliament does not only depend on the quality and value of their presentations to Parliament; but the social weight they carry and the extent to which they create public awareness of their causes.
There are a variety of ways they can do this, including through using the established media, social media, petitions, pickets and mass demonstrations.

The Committee encourages them to also use these other means as part of strengthening our democracy.
7.19 While Parliamentary Committees need to take public submissions on policies and legislation seriously and create every space for the public to participate in parliamentary processes, civil society stakeholders need to appreciate that ultimately it is the elected public representatives who make the final decisions.

While playing an active and influential part in shaping policies and legislation before parliament, they cannot co- legislate or co-govern.
7.20 The Committee is acutely aware of the urgency of the amendments and the severe implications of the country’s failure to comply with the FATF requirements, including the devastating impact that greylisting will have economically and financially on the country, especially in these extremely challenging times.
The Committee believes that it has had enough time to consider the Bill and has found the active participation of the civil society stakeholders very helpful, and expresses its fullest appreciation to them.

Even if the Committee had spent even more time on the Bill, it would not have come to any different outcomes to what it has come to, as expressed in this report.

22 8.
22 8.

Committee’s recommendations 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 The Committee recommends that the NT engages further with civil society stakeholders on the effective implementation of the Bill, should there be a need for their assistance.

The Committee reiterates its recommendation that, while the policy issues in the Bills may be clear, there is an obligation on the executive to draft Bills plainly and clearly.
The Committee recommends that the NT should ensure that the issues raised are addressed; the DSD is capacitated to adequately monitor the NPO sector; the public has reasonable access to beneficial ownership information; and the FIC mandate is properly clarified to enable it to produce forensic evidence, improve its supervision and is fully empowered to access information in registers kept by all organs of the state.
The Committee recommends that the NT and the DSD ensures that the GLAB and the NPO Amendment Bills are aligned and reconciled; and that they are transparent in this process.

The majority of the Committee does not agree with the stakeholder’s recommendation that the FIC should supervise and monitor NPOs, rather than the DSD.
The Committee agrees that the FIC does not have the legislative authority to do so, nor the capacity, and that the FIC will face the same capacity challenges as the DSD if it is given the additional responsibilities.

The Committee recommends that the responsibilities remain with the DSD, but it should be adequately resourced to fulfil them.
The Committee recommends that the NPO registration process should be simplified; and that NT in consultation with the DSD should consider the recommendation made by the stakeholders that a registration regulation mechanism that would work for the NPO sector and achieve the intended objectives of the Bill, be developed.

The Committee will refer the NPO working Group’s submission to the Parliamentary Committee on Social Development in the NCOP and to the Director General of the DSD.
The Committee understands that the proposed amendments in the GLAB seek to strengthen the financial system and improve its resilience against abuse by money launderers and terrorist financiers, and crucially, seek to avoid the possible greylisting of the country.

Having considered the legal advice received from Parliament and the legal opinion from the Senior Counsel received from the NT, the Committee believes that the proposed amendments are constitutionally sound and approves of them.
8.9 The Committee believes that to effectively implement the Bill, and this is crucially important, the DSD needs to be better capacitated and resourced and recommends that since NT has taken responsibility for processing this Bill and introducing it to 23 Parliament and moreover it ultimately decides on allocating funds from the national budget to the different departments and relevant public entities, NT ensures that DSD is given the necessary funds and other support to effectively implement its responsibilities in terms of this Bill.
8.10 The Committee recommends that NT also ensures the necessary funding and other support for the other departments and entities that also have responsibilities in terms of this Bill.

8.11 It is utterly crucial that this Bill be effectively implemented.

The Committee will review progress on this twice a year and invite civil society stakeholders to participate in the meetings.

NT must review progress until it is satisfied that implementation runs smoothly.
The Select Committee on Finance, having considered and examined the General Laws Amendment Bill [B18B - 2022] (National Assembly – section 75), referred to it, and classified by the JTM as a section 75 Bill, accepts the Bill.

The Democratic Alliance (DA), Economic Freedom Fighters (EFF) and Freedom Front Plus (FF+) reserve their position.

Report to be considered 24 2.


Report of the Select Committee on Security and Justice on Public Participation: Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill [B15B – 2022] (National Assembly – sec 75), dated 12 December 2022.
The Select Committee on Security and Justice, having held public hearings on the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill [B15B – 2022], referred to and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports as follows: 1.
Introduction The Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill [B15B – 2022] (“Bill”) was introduced to Parliament on 19 July 2022 and classified by the JTM as a Section 75 Bill.

The Bill was referred to the Select Committee on Security and Justice on 29 November 2022.

2.

Purpose of the POCDATARA Bill In summary, the proposals in the Bill aims to: 1) Amend certain definitions in the principal Act.
2) Insert some new offences related to maritime and aviation security.

3) Address the problem of foreign terrorist fighters.

4) Shift the responsibility for the publication of United Nations Security Council Resolutions in a notice in the Gazette.

In more detail.
the Bill provides for: • offences related to terrorist training and the joining and establishment of terrorist organisations; • offences related to foreign travel and attempts to leave the Republic under certain circumstances; • offences in respect of the possession and distribution of publications with unlawful terrorism related content; • authorisation to be obtained from the Director of Public Prosecutions in respect of the investigation and prosecution of certain offences; • the issuing of warrants for the search and cordoning off of vehicles, persons and premises; • a direction requiring the disclosure of a decryption key and the effect of a direction to disclose a decryption key; • the removal of, or making inaccessible, publications with unlawful terrorism related content; and to provide for matters connected therewith.
25 3.

Clauses of the Bill The Portfolio Committee on Police made several amendments to the Bill and the B-version of the Bill contains the following clauses: Clause 1 This clause proposes the substitution, deletion and insertion of certain definitions in section 1 of the principal Act.
Clause 2 Clause 2 proposes to amend section 3 of the principal Act by providing for an offence in respect of entering, departing from, or transiting through or remaining in any country, for purposes of joining or supporting terrorist groups, in other words, to address ‘‘Foreign Terrorist Fighters’’.

The clause further seeks to provide that it is an offence to support an entity engaged in terrorist activities.
Clause 3 proposes the amendment of section 4 of the principal Act by providing that it is an offence to facilitate the retention or control of property on behalf of, or for the benefit of, a specific entity identified by a Resolution of the United Nations Security Council and which is announced, or in a notice referred to in terms of section 26A(3) of the Financial Intelligence Centre Act.
Clause 4 seeks to insert section 4A in the principal Act, in order to provide for an offence in respect of an attempt to leave the Republic for the benefit of, at the direction of, or in association with a terrorist group.

Clause 5 seeks to amend section 5 of the principal Act by extending the offence related to terrorist bombings from only public places to include private places.
Clause 6 proposes to amend section 6 of the principal Act, by inserting additional offences in accordance with international law.

Clause 7 Clause 7 proposes to amend the heading to section 7 in accordance with legislative drafting practices.

Clause 8 proposes the amendment of section 9 of the principal Act to provide that it will be an offence to, by any other means, seize or exercise control of an aircraft for the purposes listed in section 9.
Clause 9 proposes to amend section 10 of the principal Act by providing for additional offences in accordance with the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, as amended by the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005.
Clause 10 proposes to amend section 11 of the principal Act by substituting the reference to a specified offence with the offence of terrorism referred to in section 2, an offence associated or connected with terrorist activities referred to in section 3, any Convention offence, or an offence referred to in section 13 or 14.
Clause 11 proposes to amend section 12 of the principal Act by providing that no duty of secrecy or confidentiality, or any other restriction on the disclosure of information, whether imposed by legislation or arising from the common law or agreement, affects compliance by an accountable institution, supervisory body, reporting institution as defined in the Financial Intelligence Centre Act or any other person.
26 Clause 12 seeks to amend section 13 of the principal Act by providing that the use of false threats to intimidate the public or to divert police resources in order to enable the commission of a crime is an offence.

Clause 13 seeks to simplify the language of section 15 of the principal Act following the Constitutional Court judgment of S v Okah [2018] ZACC 3.
It further amplifies the jurisdictional issues of the principal Act, as well as where a warrant in respect of offences in terms of the principal Act may be obtained under the Criminal Procedure Act, 1977 (Act No.

51 of 1977).
51 of 1977).

The clause further provides that persons who are not citizens of the Republic, who are not ordinarily resident in the Republic or persons who are stateless, must be advised of their rights to consular assistance from the State, where they are ordinarily resident or of which they are citizens.

The clause, in terms of international obligations, provides that the relevant governments must be informed of the arrest of such a person for a Convention offence.
Clause 14 Clause 14 seeks to amend section 16 of the principal Act and provides that the prosecution for an offence under section 13 may be instituted without the written authority of the National Director and may be authorised by the relevant Director of Public Prosecutions.

Clause 15 Clause 15 proposes the substitution in section 17 for the reference to the Department of Foreign Affairs with the Department responsible for International Relations and Cooperation.
Clause 16 Clause 16 seeks to align the sentencing, as laid down in section 18 of the principal Act, with the severity of the offence, especially in relation to the financing of terrorism.

It also provides for sentences in respect of the offences listed in sections 4A and 24A(10) and (11).
Clause 17 Clause 17 proposes to substitute section 23 of the principal Act as a consequence of the proposed repeal of section 25 and expands on the ambit of, and what may be contained in, a freezing order, the making of ancillary orders, the publication of orders, the appointment of a curator bonis and interim orders.
Clause 18 Clause 18 proposes to amend section 24 of the principal Act by providing for the inclusion of premises which may be cordoned off and searched in accordance with a warrant which may be issued by a judge.
Clause 19 Clause 19 proposes the insertion of section 24A in the principal Act, which provides that a member of the Directorate may apply to a High Court for an order directing an electronic communications service provider to take-down or disable access to a terrorism publication hosted on its electronic communication service.

Clause 20 proposes the repeal of sections 25 and 26 of the principal Act in respect of Parliamentary supervision.
Clause 21 proposes amendments to section 27 of the principal Act by providing that any proclamations issued under section 25(1), before the commencement of the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Act, 2022, remain valid and have the same force and effect as a notice referred to in section 26A(3) of the Financial Intelligence Centre Act.
Clause 22 Clause 22 proposes amendments to the Preamble of the principal Act to reflect South Africa’s changed status in respect of having become a Party to certain counter-terrorism international instruments, including international instruments concluded after the adoption of the principal Act, but not yet in force.

27 Clause 23 Clause 23 proposes amendments to the arrangement of sections of the principal Act.
Clause 24 Clause 24 proposes to amend or repeal the laws to the extent indicated in the Schedule to the Bill.

The proposed amendment to the Intimidation Act, 1982 (Act No.
72 of 1982) (‘‘Intimidation Act’’), gives effect to the Constitutional Court Judgment delivered on 22 October 2019 in the matters of General Alfred Moyo and Another v Minister of Police and Others and Nokulunga Primrose Sonti and Another v Minister of Police and Others [2019] ZACC 40, where sections 1(1)(b) and 1(2) of the Intimidation Act were ruled as unconstitutional.
See also the recommendation of the South African Law Reform Commission in its Report on the Review of Security Legislation: Project 105, at page 1046.

Clause 25 Clause 25 provides for the short title and commencement of the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Act, 2022.

4.

Public Participation Process and Public Hearings The B-version of the Bill was advertised for public comment on social media platforms from 30 November to 6 December 2022.
In addition, the Committee attempted to contact the organisations who had made submissions to the Portfolio Committee on Police to determine whether or not they had further submissions to make on this version of the Bill.

1.

AfriForum – No submission received.

2.

Banking Association of South Africa – BASA indicated they would not be submitting comment on the B-version of the Bill.

3.

DearSA – Submitted a written submission and requested a verbal presentation.
4. International Committee of the Red Cross (ICRC) – Submitted a written submission.

5.

The Sussex Terrorism and Extremism Research Network (STERN) – Submitted a written submission and requested a verbal presentation.

The following organisations and individuals made submissions to the Select Committee: 1.

Freedom of Religion in South Africa (FOR-SA); 2.

The Sussex Terrorism and Extremism Research Network (STERN); 3.

The International Committee of the Red Cross (ICRC); 4.
An individual, Nelius Pretorius; 5.

Cape Independence Party; and 6.

Dear South Africa.

The table below contains the written and oral representations made to the Committee, with the Departmental response thereto.

PROVISION IN QUESTION and COMMENTATO R FORSA 1: Clause Definition of Terrorist Activity SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS Definition of “terrorist activity” – Clause 1 proposes amending the definition contained in section 1 of the principal Act.
However, of concern is the wide definition of “terrorist activity”.

The current definition runs over two (2) pages in length.

It contains various  The definition of “terrorist activity” rests on two legs: A = Any activity that can cause harm PLUS SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 28 PROVISION IN QUESTION and COMMENTATO R broad phrases that are open to abuse.
This is of specific concern given that recent events have seen where the Department of Health labelled civil society organisations involved the in enabling public comments on Department’s proposed health regulations as “instigating terrorism” and/or “sabotage”.
It is problematic that “‘terrorist activity’… means any act— (a) committed in or outside the Republic, which (viii) creates a serious public emergency situation or a general insurrection in the Republic and (b) which is intended, or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or indirectly, to— (iv) further the objectives of an entity engaged in terrorist activity.” The above is vague, with no specified criteria for either a “serious public emergency” or a “general insurrection”.
As such, it is open to abuse and it is possible that it may be interpreted, as done in the aforementioned example of the Department to civil society refer of Health, organisations and/or advocacy groups that are involved in facilitating public awareness of, and participation in, the legislative other Governmental process activities.
and/or to An unintended consequence of the Bill could therefore be to criminalise the voices of those opposing Government actions and/or curb civil society’s dialogue and actions in what is a participatory democracy.

Given that the religious community is often at the forefront of criticising Government and/or facilitating public participation the legislative process and other civil society activities, this is particularly concerning to religious organisations and leaders.
in elections, The principal Act criminalises involvement with and/or funding organisations that are B = Achievement of any of the intended objectives EQUALS C = “Terrorist Activity” with that activity  The definition seeks to explain that there needs to be a link between the activity that can cause harm and the intention to achieve the objectives.
If activities lack the necessary terrorist intent which is usually aimed at terrorizing the civil population or government, it cannot be considered as terrorism under the Act.

If one element is missing, the crime is not established.

The circumstances and evidence of each particular case, will have to be looked at, to arrive at a conclusion.

under POCDATARA is only possible with the written authority of the National Director of Public Prosecutions.
The function of the NDPP in this instance is to determine that the State has a prima facie case with a reasonable prospect of obtaining a conviction.

The NDPP's decision to authorise a prosecution is therefore an important safeguard as it has to take account of all factors that may influence the prospects of obtaining a conviction.
Prosecution  The examples mentioned by the Commentator that the actions of civil society organizations that facilitate public awareness into the legislative processes, will therefore not fall within the ambit of the definition of terrorist activity, because it lacks the intent to cause harm.
 The comments regarding acts that creates serious public emergency situations or a general insurrection in the Republic are noted, but yet again these acts will have to be tested against the definition of “terrorist activity” before any prosecution can be instituted.

SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 29 PROVISION IN QUESTION and COMMENTATO R to be involved with “terrorist deemed activity”.

In light of the above, this is equally concerning to the religious community.
all The above definition, being open to abuse, could drastically limit the rights to: religious freedom which protects the right to hold opinions and beliefs and live these out publicly; freedom of expression, which protects from expression propaganda for war, incitement of imminent violence, and the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm; and freedom of association, which protects the right to freely associate with those one wishes to associate with.
apart Narrowing the definition of what is “terrorist activity” to avoid abuse by a future Government is vital.

The right to religious freedom and freedom of association are, the various inter alia, protected international covenants treaties and declarations.

It would thus be prudent for the Committee to be take cognisance of South Africa’s international law obligations, when drafting that directly affects legislation fundamental rights.
in / FORSA argues: the Limiting a right: section 7(3) of Constitution states that a right contained in the Bill of Rights can be limited by section 36, or “elsewhere in the Bill” – i.e.

by an internal limitation clause as is the case in section 16(2).

Interpreting a law: Importantly, in the current situation of drafting a proposed law, section 39(2) of the South African Constitution requires that any law must be interpreted in a way that promotes “the spirit, purport and objects of the Bill of Rights”.
In particular, For SA reiterates the right to Religious Freedom contained in section 15 of  There is no intention to criminalize voices of those opposing Government processes.

The Department concurs that Freedom of religion, expression and association are rights that are protected in terms of the Constitution of the Republic of South Africa, but are not without limitation in terms of section 36 of the Constitution.
Any limitation of these rights must be justified and comply with all the requirements in section 36.

 The Committee’s attention is also drawn to the fact that this particular part in the definition was not a subject matter in the Bill.

It has been part of the definition since the adoption of the principal Act in 2004.

The only amendment made to this part was the omission of a comma and insertion of the word “or” in line with technical legislative drafting.
seek compromise to diminish  The Commentator’s recommendation to narrow down the definition of “terrorist activity” is noted, but is not advisable.

Substantive amendments to the definition the that would definition, and that are amendments other than those proposed in the Bill, will most legislative likely measures that are currently in place in the law to prevent and combat terrorism in if substantive the country.
Further, the to amendments will be made definition at this stage in the legislative process, it will have a detrimental effect on other provisions in the Bill and may require consequential amendments to other provisions in the principal Act, that is not advisable.

substantial the RECOMMENDATION: The CSPS respectfully requests the Committee, not to amend the definition, outside the parameters of the current amendments proposed in the Bill.
The definition in the PROVISION IN QUESTION and COMMENTATO R SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 30 the Constitution, the Right to Freedom of Expression contained in section 16 of the Constitution and the Right to Freedom of Association contained in Section 18 of the Constitution.

principal Act has been in place since 2004 and only minor amendments are now proposed.
RECOMMENDATIONS: Clause 1 - Wide definition of terrorist activity: FOR SA proposes that: The definition of “terrorist activity” be narrowed by excluding “viii) creates a serious public emergency situation or a general insurrection in the Republic”.

The criteria to be met for a “serious public emergency situation” and expressly “general stipulated in the Bill.
insurrection” be Alternatively, that:The criteria to be met for a “serious public emergency situation” and expressly “general stipulated in the Bill.

insurrection” be Dear SA Clause : of Definition Terrorist Activity 1 DearSA harbours significant concerns regarding the contents of the Terrorist and Related Activities Amendment Bill.

These concerns are in relation to the lack of concrete and clearly defined definitions of, among others, what constitutes terrorism, as well as terrorist acts and activities.
The severe impact of loose interpretation from vaguely-defined and broad terms towards the rights of South African constitutional citizens is problematic.

The Constitution is the supreme law of the land, and no law or proposed amendment can be in conflict with it.

The Bill in its current form has to significantly infringe upon: • Freedom of Expression • Freedom of association the potential  It is common cause that the principal Act does not meet the demands of FATF.
The Bill addresses the recommendations of and guidance from oversight structures, especially from the 2018 report of the Executive UN-Counter-Terrorism Directorate the 2021 mutual assessment report of the Eastern and Southern African Anti-Terrorism Group and the Financial Action Task Force.

 Further, the principal Act has to be brought in line with developments in International Law as well as oversight by the courts.
and RECOMMENDATION: Department recommends The the that SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 31 PROVISION IN QUESTION and COMMENTATO R deletion unchanged.

of section 1(4) remains • Right to self-determination Of particular concern regarding the right to self-determination is the proposed arbitrary removal of Sections 4 and 5 from Chapter 1 (Definitions).
This section specifically refers to the right to self-determination as promoted and protected by the United Nations, to which South Africa is a member and bound signatory.

There is no rational reason to remove this section if not to blatantly try to in persecute accordance with the United Nations’ right to self-determination.
anyone legally acting Furthermore, potentially any person, group, or organisation that criticises the government or expresses opposition to government policy or positions can be labelled as a terrorist under the Bill due to the clauses on “encouragement” and “indirect facilitation of terrorism”.
Hence the repercussions of this Bill for all those who act as NGOs, especially watchdogs and guardians of constitutional and democratic processes, are debilitating and destructive Any additional amendments, primarily that which potentially conflicts with citizens’ constitutional rights and freedoms and criminalises them for exercising their hard- won democratic processes, must be written with unambiguous and plain definitions.
South Africa has existing comprehensive and effective legislation to prosecute criminal and terrorist activity.

As presented by Dr A Schoeman (STERN), extremist and terrorist groups and individuals including Boeremag, PAGAD, Henry Okah, Thulsie twins and others, were intercepted, apprehended and charged under terrorism using un-amended existing, POCDATARA Act and other existing legislation.

successfully the 1.
successfully the 1.

We believe that the POCDATARA Bill and proposed amendments provide no SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 32 PROVISION IN QUESTION and COMMENTATO R additional benefit to curbing terrorist and terrorist activities, as the current Act has proven to be extremely effective.

that the current 2.
that the current 2.

We also believe POCDATARA Act, used in conjunction with the recently adopted General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Bill [B 18B-2022], more than adequately meets the demands of the Financial Action Task Force.

Left un-amended, the POCDATARA Act will not have a negative impact on the potential grey-listing of South Africa.
Cape Independence Party 1: Clause Definition of Terrorist Activity that strongly recommend the We POCDATARA Bill be sent back to the drawing board for reconsideration regarding its content, overall desirability and necessity.

In “Amendments B-15B” pg6 a)(iiiA), it states that terrorism is “any act”, which “is calculated to overthrow the government…”, and such terms as “overthrow” are left open to interpretation without any context of self- determination.
This could result in the most basic democratic process of a political party in favour of self-determination electorally defeating/“overthrowing” the national ruling party being interpreted as an act of terrorism.

Furthermore, the above peaceful political acts taken in conjunction with pg7 b)i) which states terrorism is any act which “threatens the unity or territorial integrity of the Republic”, could also misconstrue self- determination as terrorism.
And on pg7 b)ii) the net is cast so unreasonably wide so as to include the sharing of any ideas which “may cause feelings of insecurity”… in a “person, government.. or institution.” The above is made even worse on pg7 c) where it confuses matters further by stating that terrorism is any activity as contemplated above “which is committed… for the purpose the advancement of a… political, of religious, ideological or philosophical motive, objective, cause or undertaking.”  Section 235 of the Constitution recognizes the collective right of the South African self- determination.
Communities have rights to pursue self-determination in line with the collective right.

people to  Whilst the Bill of Rights protects basic human rights such as right to life, right to freedom and security of the person, it does not protect the right to self- determination.

 It follows that to self- determination cannot be protected at the cost of human rights.
the right  For an act to be regarded as a “terrorist activity” there has to be a link between the act that can cause harm and the intention to achieve the objectives.

Any organisation that pursues the collective right to self-determination in a peaceful manner, would under no circumstances perpetrate any of the actions described in paragraph (a) of the definition and would therefore never be in the position where it could potentially be considered to be involved in terrorist activity.
SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 33 PROVISION IN QUESTION and COMMENTATO R The principles of international order were set out in a 2018 report (A/HRC/3763) to the General Assembly of the United Nations and the Human Rights Council.

Section 14(h) categorically states that the principle of territorial integrity has external application and a state cannot use the principle of territorial integrity to deny or hollow out the right to self-determination.
It is as if the above amendments have been constructed either with malicious intent or without any conscious understanding of the right to self-determination, the right to free speech, political protest, and a basic principle of democracy which is to protect the right to a plurality of opinions and opposition voices which keep a government accountable.
The above is obviously not an unacceptable outcome or interpretation, but one that becomes possible with the inclusion of ambiguous and broad definitions, and by the removal of any reference to the right to self- determination.

The absurdity of the proposed amendments to the POCDATARA Act is that, if enacted in its current form, many organisations and their supporters could now potentially be classified as terrorists.
Therefore, we kindly request the Select Committee on Security and Justice to reconsider the proposed amendments, to ensure that the right to self-determination remains in the Act, that any ambiguity is removed which may threaten South African democracy, free speech, the right to report and share information freely, protest the government, and oppose its policies.

This amendment bill is very broad and should be scrapped in its entirety.
The specific concerning parts mentioned start from page 111: Nelius Pretorius 1: Clause Definition of Terrorist Activity 1 Page 7 of B version of the Bill.

in paragraph (a) of  It should be noted that the activities described the definition would in itself be regarded as very serious criminal offences, and if pursued in the exercise of the right to self-determination, would not be a defence against those offences, despite section 1(4) of the principal Act.
through  Section 1(4) of the principal Act does not protect an organisation that pursues the self-determination commission of the acts mentioned in the definition through means that threaten or harm civilian populations or non- military combatants, from a charge of terrorism.

Such acts would not constitute a self- determination, “in accordance with the principles law, international especially international humanitarian law”.
legitimate pursuit of of RECOMMENDATION: The CSPS respectfully requests the Committee, not to amend the definition, outside the parameters of the current amendments proposed in the Bill.

The definition in the principal Act has been in place since 2004 and only minor amendments are now proposed.

 The comments by the Commentator are noted, but do not take into account all of the elements of the crime that have to be proven for a successful prosecution.
SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 34 PROVISION IN QUESTION and COMMENTATO R q) by the substitution in subsection (1) for the definition of the following definition: ''terrorist activity'' of ii) intimidate, or to induce or cause feelings of insecurity within, the public, or a segment of the public, with regard to its security, including its economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population; [or] intimidate, force, (iii) unduly compel, coerce, induce or cause a person, a government, the general public or a segment of the public, or a domestic or an international organisation or body or intergovernmental organisation or body, to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles ICRC Clause 1: Deletion of Section 1(4) of the Act Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, any including action during an armed struggle, in exercise or the furtherance of legitimate their to national right self- liberation, determination and South Africa is not the only State whose counter-terrorism legislation presents such a clause (so called ’IHL Saving clause’).
For example, the counter-terrorism legislation of Ethiopia, Chad, the UK, Ireland, New Zealand and Canada, present similar clauses.

The IHL Saving clause is also recommended by the African Union Model Anti-Terrorism law4 and by other regional organizations such as the European Union.

Furthermore, United Nations Security Council Resolution 2462 and 2482 (2019) demands States to ensure that their counter-terrorism measures comply with IHL.
The purpose of an IHL Saving clause is to separate the law applicable to the conduct that occurs in peacetime from the conduct that occurs during an armed conflict.

If the conduct qualified as ‘terrorist’ occurs in peacetime, IHL would not apply, and the situation would remain governed by domestic law, including by the relevant RECOMMENDATION: The CSPS respectfully requests the Committee, not to amend the definition, outside the parameters of the current amendments proposed in the Bill.
The definition in the principal Act has been in place since 2004 and only minor amendments are now proposed.

the The deletion of s1(4) stems from the following: 1.

Aligning principal Act to developments in International law since its adoption eg.

Geneva Conventions and Additional Protocol II (Relating to the Protection of Victims of International and Non-International Armed Conflicts).

I and 2.
The Financial Action Task Force (“FATF”) Mutual Evaluation Report, Oct. 2021 the FATF assessment team Although considered the view that the clause did not constitute a limitation on the ambit of the crime of terrorism as it derived from the Geneva Conventions, it concluded that the clause narrows down the scope of the terrorist financing offence in section 4 in its SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 35 PROVISION IN QUESTION and COMMENTATO R comparison to the requirements of Articles 2 and 6 of the United Nations Convention on Suppressing the Financing Terrorism that was adopted in 1999.
In particular, this Convention requires Article 6 of countries to adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of the Convention (terrorist financing offences) are under no circumstances justifiable on political, philosophical, ideological, racial, ethnic, religious or other similar considerations.
The FATF considered this as a major factor in their assessment of the recommendation on the criminalization of terrorist financing.

It also played a role in the assessment of the country’s ability to provide international co- operation in extradition matters relating to terrorist financing offences.

RECOMMENDATION: The Depart- ment recommends that the deletion of section 1(4) remains unchanged.
or or or by foreign in independence against colonialism, occupation aggression domination alien or forces, accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International concerning Law Friendly Relations and Cooperation among States in accordance with the said Charter, shall not, reason, for any for including of purposes or prosecution be extradition, considered as terrorist activity, as defined in subsection (1).
a and legislation, by counter-terrorism international human rights law.

Conversely, if the conduct occurs within the context of an international or a non-international armed conflict, IHL is better suited to govern the situations.

Deleting South Africa’s IHL Saving clause (i.e., the current section 1 (4) of the POCDATRA), would mean there is no longer separation of the legal framework for conduct that occurs within an armed conflict, and the legal framework for the conduct that in peacetime.
This would be occurs inconsistent Africa’s international obligations which has accepted IHL as the legal framework governing armed conflicts South with In engagements with the Parliamentary Portfolio Committee on Police during their consideration of the Amendment Bill, it became clear that there was a concern that the deletion of s1(4) of the POCDTARA Act was a recommendation the Mutual Evaluation Report of the Financial Action Task Force (“FATF”).
The ICRC response is as follows: the • Unlike IHL, in FATF Recommendations are non-binding.

They do not carry the same value as instruments such as international relevant counter-terrorism conventions or IHL.

As such, the Government of South Africa must favour provisions in its national legislation that comply with IHL.
• The ICRC, in its capacity as guardian of IHL, would like to respectfully the FATF approach submit its towards 1999 interpretation International Convention for the Suppression of the Financing of Terrorism are incorrect.
The FATF as well the of IHL that as SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 36 PROVISION IN QUESTION and COMMENTATO R • • the the financing argues that by excluding certain actions of from scope the POCDATARA, the IHL Savings clause unduly restricts the scope of the offence of financing terrorism.

The ICRC respectfully disagrees with the this observation.
From ICRC’s perspective, incorporating an IHL Saving Clause in counter- terrorism completely aligns with the 1999 of requirements Convention.

1999 Convention Indeed, includes expressly provisions excluding certain acts from the scope of terrorism offences.

Article 2 of this instrument contains two elements already limiting the scope of crimes based on IHL.
As such, the IHL Saving clause in s1(4) of POCDATARA, together with the amendments previously suggested by the ICRC, is perfectly in line with the 1999 Convention and cannot be considered as restricting the scope of counter-terrorism under international counter-terrorism conventions.

It is also important to highlight that incorporating an IHL Saving clause in counter-terrorism legislation does not from prosecuting the offence of ‘financing of terrorism’ and ‘participation to a terrorist group’.
For instance, current s1(4) of POCDTARA as amended by the ICRC’s suggestion would still allow South Africa to prosecute actionsconsisting channeling funds to non-State armed groups for the purposes of committing acts of civilian terrorism population and/or civilian objects.
the State prevent against crimes the of PROVISION IN QUESTION and COMMENTATO R Cape Independence Party Clause 1: Deletion of Section 1(4) of the Act SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 37 Such acts would not be protected by the IHL Saving clause.

from being In particular, we object to the removal of Chapter 1.

Subsection 4, which defines and protects the constitutional right to self- determination incorrectly interpreted as terrorism.
We note that the Red Cross, DearSA, as well as Afriforum, amongst others, have also raised serious concerns surrounding the dangers of the removal of this subsection.

This section was intentionally included in the original Act, under “Definitions and Interpretation”, for the exact purpose of making it clear to all, the public and the courts, that self-determination is NOT to be defined or interpreted as terrorism.

There can be no logical reason to remove this entire section.
Its removal creates confusion within the intent of the law, and thereby suggests that acts of self-determination could be confused as acts of terrorism.

of are the and clarity Since its very inception in the Act, Chapter 1.

Subsection 4 has helped to define the law surrounding terrorism and to help ensure that not self-determination acts misinterpreted as terrorism.

It therefore provided correct interpretation to the law.

Nothing is gained by its removal.


Its removal is arbitrary and dangerous as it could lead to the persecution of acts protected in the constitution, such as self-determination.

In complete opposition to the above, the removal of Subsection.

4 does nothing to strengthen the definition of terrorism - as the Bill was intended to do - instead it weakens the definition, provides less clarity, and creates confusion in the interpretation of the law.
If there is a specific part of the subsection that the Committee is concerned with then that specific part should be addressed.

But removal of the entire subsection protecting the right to self-determination goes against the intended interpretation of the law and  The wording “including any action during an armed struggle”, means that the these acts are excluded from definition of terrorist activity and shall not be considered as a terrorist activity.
a of the Mutual recommendation Evaluation Report of the FATF.
s1(4) was  The deletion in the Geneva Conventions,  Although the FATF assessment team considered the view that the clause did not constitute a limitation on the ambit of the crime of terrorism as it derived it from concluded that the clause narrows down the scope of the terrorist financing offence in section 4 in its comparison to the requirements of Articles 2 and 6 of the United Nations Convention on Suppressing the Financing that was adopted in 1999.
In particular, Article 6 of this Convention requires countries to adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of the financing (terrorist Convention offences) are under no circumstances justifiable on political, philosophical, ideological, racial, ethnic, religious or other similar considerations.
 The FATF considered this as a major factor in their assessment of recommendation on the criminaliza-tion of terrorist financing.

the ability country’s  It also played a role in the assessment of to provide the international co-operation in extradition matters relating to terrorist financing offences.
A limited narrowing of the the exemption, therefore not commentator, would as proposed by PROVISION IN QUESTION and COMMENTATO R SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 38 may result in conflict with Section 235 of the South African constitution, as well as international law.

Recommendation that arose from Cape Independence Party during the Public Hearings: address the underlying concern that was pointed out in the mutual evaluation report.
RECOMMENDATION: The Depart- ment recommends that the deletion of section 1(4) remains unchanged.

of FATF recommendations states: The “Generally, the criminalization of TF in South Africa is broadly consistent (84) with the TF Convention.

The most POCDATARA, however, does exclude from the definition of terrorist activity certain acts committed during an armed struggle.
(85) This exemption therefore narrows the scope of (FATF Recommendations: reference #84 and #85) Convention.” the TF First of all the FATF congratulates South Africa in its recommendations on pg 165, reference #84, stating that South Africa is “broadly consistent with most of the TF Convention”.
Then when one looks at the POCTDATARA S.1(4) FATF to Recommendations, reference #85, the phrase they state is of concern to them is: “however, (The POCDATARA) does exclude from the definition of terrorist activity certain acts committed during an armed struggle.
This exemption therefore narrows the scope of the TF Convention.” referred the in Let us now look at the entire POCDATARA S.1(4), referred to in the FATF Recommendations as, reference #85: “(4) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during an armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self-determination independence against colonialism, or occupation or aggression or domination by alien or foreign and SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 39 PROVISION IN QUESTION and COMMENTATO R forces, in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the said Charter, shall not, for any reason, including for purposes of prosecution or extradition, be considered as a terrorist activity, as defined in subsection (1).” It is the aspect of violence that is the fundamental issue.
And according to the FATF’s very own recommendations, they too chose to specifically highlight and identify this one specific phrase of an “armed struggle” within S.1(4) that was of concern to them.

If then, one was to remove the phrase, “including any action during an armed struggle”, this would immediately remove any possibility for acts of violence from being condoned under S1(4), and therefore open up the definition to easily prosecute anyone engaging in any acts of violence.
This would also clearly limit any acts of self- determination to remain purely within the legitimate the peaceful and democratic, political process.

realm of iiiA) could However, the inverse is true if one removes the entire clause S.1(4), then the broad terminology such as “is calculated to overthrow the government” (Amendments: interpret peaceful, a) self- of political, to seek determination defeat/“overthrow” a government, by winning elections, as terrorism.
Just as acts of violence are unacceptable, this would not be an acceptable outcome either, nor would it be consistent with the laws listed then democratic that acts SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 40 PROVISION IN QUESTION and COMMENTATO R that protect above determination.
the right to self- Therefore, we believe that the proposed job of amendment does a very good satisfying the concerns of the FATF, thereby showing South Africa’s good faith and willingness to compromise and comply.

It also preserves the original Acts intention to ensure that self-determination is clearly defined and not mistakenly interpreted as terrorism, and at the same time, does not unnecessarily threaten or undermine this long-standing constitutional right.
ICRC : Parliament to consider including a clause in the Amendment Bill to provide for exemption from criminal sanctions impartial of humanitarian assistance provided by that organizations operate with State consent, reference is made to: Section 3(2) of the Act: (2) Any person who- (a) provides or offers to provide any weapon to any for other person use by or for the benefit of an entity; (b) solicits support for or gives support to an entity; (c) provides, receives or participates in or training or instruction, out carried criminalization action The ICRC is also concerned by the absence of a clause within POCDATRA to exempt exclusively from humanitarian by humanitarian and impartial organizations.
The current wording of the Bill may unintentionally criminalize the provision of instance, humanitarian section 3 (2) of POCDATRA could potentially criminalize provision of medical assistance to wounded people in areas controlled by a Non-State Armed Group.

assistance.

For The potential criminalization of exclusively humanitarian activities does not accord with the letter and spirit of IHL.
Article 3 Common to the Geneva Conventions provide that impartial organizations may offer their services for the benefit of the victims of armed conflict.

Impartiality requires that the humanitarian services are offered without any adverse distinction based on criteria such race, nationality, religion or ethnicity.

In order to avoid the potential criminalization of humanitarian aid, it is important to provide for a ‘humanitarian exemption clause’ in counter-terrorism legislation.
Such clauses have been included in the counterterrorism legislation in various jurisdictions such as Ethiopia, Chad, Philippines, Switzerland, the United Kingdom, New Zealand and Australia.

Like the IHL Saving clause, the entities impersonating The inclusion of a humanitarian exemption clause is not supported due to the following: The Terror Financing provisions in the Bill are derived from the Convention for the Suppression of the Financing of Terrorism (TF).
The crime only applies to financing terrorist entities and activities.

The ICRC renders humanitarian assistance to victims of armed conflicts, and these cannot remotely fall within the ambit of the TF.

Open ended reference to humanitarian organisations would open the door to such terrorist organisations.

Immunities recognized for the ICRC in terms of international law, exempt if from having to testify in criminal proceedings of tribunals and domestic courts.
Treatment of victims would constitute proof that they were in fact victims of war crime sought to be prosecuted.

Giving evidence of such, the ICRC would either not be allowed into conflict zones or being itself targeted.

Immunity exists, due to the interests of alleviating human suffering that outweigh the giving of evidence.

This is entirely different from exempting the ICRC from the provisions of a criminal offence.
PROVISION IN QUESTION and COMMENTATO R recruits an entity to receive training or instruction; (d) recruits any entity; or collects (e) makes a document; or (f) possesses a connected thing, the with in a engagement terrorist activity, and who knows or ought reasonably to have known or suspected that such weapons, soliciting, training, recruitment, document or thing is so connected, is guilty of an offence connected with terrorist activities.
STERN Deletion of Clause original 3 version of the Bill in SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 41 is also humanitarian exemption clause recommended by the African Union Model Law on Counter-terrorism10 and by other organizations such as the European Union.
Furthermore, United Nations Security Council resolution 2462 (2019) urges States “when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.

There is therefore no necessity for an exemption as per the ICRC submission.
The National Director for Public Prosecutions must authorize all TF prosecutions and it is therefore sufficiently safeguarded against any potential abuse.

RECOMMENDATION: The an Department Exemption clause not be included in the Bill.

recommends that in The ICRC appeals to Parliament to consider including a clause in the Amendment Bill to provide for exemption from criminal sanctions of impartial humanitarian assistance provided by organizations that operate with State consent.
As currently worded, section 3(2) of POCDATRA could criminalize the work of exclusively humanitarian and impartial organizations such as the ICRC.

Such a clause would entrench in law a targeted approach in dealing with the threat of terrorism the Non-Profit Sector as recommended under the Financial Action Task Force1 (FATF) regulations.
In the original amendment Bill, a clause was proposed dealing with the “Prohibition of publication with unlawful terrorism related content” which created an offence related to the publishing, distribution, or circulation of content “intended to directly or indirectly encourage the commission, preparation or instigation of any offence under this Act”.

This clause was removed from the Bill in the Portfolio Committee’s deliberations, which we believe is a mistake and will undermine South African’s security.
The removal of this important clause likely stems from concerns that this will overly prohibit freedom of expression and lead to abuses by the state.

However, public comments making these otherwise induce or  The clause related to the prohibition of any publications with terrorist related content in the original amendment Bill, sought to create an offence related to the publishing, distribution or circulation of content to encourage or induce the commission of any offence under the principal Act.
 During the public participation process when the Bill served before the Portfolio Committee on Police the Department carefully considered all submissions that cautioned about the constitutionality of the clause and possible infringement on the right of (PCoP), SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 42 PROVISION IN QUESTION and COMMENTATO R claims fail to understand the boundaries and specificity of the law when it comes to the proposed criminalisation of terrorist content states clearly Stern refers to Section 16 of the Constitution in relation to Freedom of Speech and argues the Constitution that propaganda for war and the incitement of violence do not qualify as protected speech.
Considering the security threat that this type of material poses to the country and South Africans, the incitement of violence and terrorist-related acts should rightfully be criminalised.

Many have criminalised these acts for this reason.

Further, the legislation places clear and appropriate limits on the use of these powers by limiting it to the promotion of offences criminalised under the Act and tying it to the extensively defined definition of terrorist activity.
Most the current definition of terrorist activity includes the following caveat: importantly, countries (3) For the purposes of paragraph (o)(vi) and (vii) of the definition of “terrorist activity”, any act which is committed in pursuance of any advocacy, protest, dissent or industrial action and which does not intend the harm contemplated in paragraph (o)(i) to (v) of that definition, shall not be regarded as a terrorist activity within the meaning of that definition.
and proposed This means that the definition is limited to the perpetration of terrorist acts criminalised under international law (the Convention clause the Offences) prohibiting the publication of terrorism content takes this into account.

This places an appropriate limit on the application of the law and will prevent abuses of the legislation to suppress legitimate free speech and dissent.
Any speech which does not advocate for or incite Convention offences will consequently not fall within the remit of this legislation.

Concerns that the inclusion of freedom of expression and agreed to propose to the PCoP the deletion of the clause.

It is our considered opinion that prosecutions of publications with can be terrorist prosecuted under section 14 of the principal Act.
content, related  Examples of problematic provisions in the clause: • 3A(2)(d): “A person commits an offence if he or she, in respect of a publication with unlawful terrorism related content— … (d) provides a service to others that enables them to obtain, read, listen to, or look at such a publication, or to acquire it by means of a gift, sale or loan.” communications  Provision is onerous, especially for electronic service providers – the offence lies in “enables them to obtain, read, listen to, or look at such a publication” whereas such a provider may only provide the access mechanism but has no control over what content is accessed through its service.
If the provider for example, enables broad internet access, and the user then chose to search and access prohibited material, the provider will be on the wrong side of the law, and the provision is therefore too wide.

• 3A(5)(b): ““A person charged with committing an offence under this section and section 3(2)(e) may raise as a defence— … (b) the person's action or possession was for the purposes of— carrying out work as a (i) journalist; or (ii) academic research.".
SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 43 PROVISION IN QUESTION and COMMENTATO R this clause will restrict civil society groups and legitimate free speech fail to understand the boundaries of this legislation and the built-in restrictions to protect legitimate dissent.

The Select Committee is asked that this clause prohibiting the publication of unlawful terrorist content should be returned to the Bill.
This is an important tool for deterring the publication of such material which has been used to radicalise young South Africans to violent extremist causes and incite them to commit terrorist acts in South Africa.

An intervention at this point will disrupt the chain leading from the radicalisation of an the perpetration of terrorist acts.
This is an important the potential to prevent the loss of life and keep ordinary South Africans safe.. intervention which has individual to FORSA Subsection 3 of the definition of terrorist activity The addition of a phase such as “is calculated to overthrow the government”, will fall within the sections mentioned in subsection 3.

If you have “advocacy” that is deemed by the State as being “to overthrow the subsection 3 offers no government”, protection.
identified is no  The provision on carrying out work as a “journalist” as was specific problematic.

There definition of “journalist” in South African law.

Mainstream journalists are not registered anywhere and are opposed to registration.

The only safety net is that of the Persombudsman.

For example, any person in possession of a cellphone device and a blog, can publish unlawful is terrorism considered a journalist.
It is therefore uncertain whom should be considered as a journalist for purposes of the defence.

The defence of journalism was also debated by the previous Portfolio Committee on Police, in case of the Critical Infrastructure Protection Act, and the defence was not inserted.
content related and  The examples aforementioned of complexities in the clause, as well as possible constitutional challenges and possible infringement of the right of the freedom of expression, proposal to the PCoP to delete the clause, that was accepted by the PCoP, and we respectfully make the same proposal to the Select Committee, not to reinstate the clause, because the offence can be successfully prosecuted under section 14 of the principal Act.
led to related insertion RECOMMENDATION: The Depart- ment recommends that the deletion of clause 3A remains unchanged.

 The proposed to overthrowing of a government must be read in conjunction with paragraph (a)(viii) of the definition: “creates a serious public emergency situation or a general insurrection in the Republic”.
The title of the Act is Protection of against Constitutional Democracy SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 44 PROVISION IN QUESTION and COMMENTATO R Terrorist and Related Activities Act.

Clearly in a constitutional democracy, overthrowing the government or the constitutional order by unconstitutional means such as crippling the country or by means of violence, should be a crime.

ISIS in Syria has established its own government by means of violence.
 It is correct that subsection (iiiA) will fall within the ambit of subsection 3.

Whether the “advocacy” will be deemed as a harmful action to overthrow the government, is a question on whether the advocacy is violent in nature and aimed at endangering life or bodily the integrity of persons.

In addition to this, the advocacy must be intended to threaten the unity and territorial integrity of the Republic and intimidate the public in a manner that they feel unsafe.

The State must prove this.


If not proven, the “advocacy” enjoys protection under subsection 3.

RECOMMENDATION: The CSPS respectfully requests the Committee, not to amend the definition., outside the parameters of the current amendments proposed in the Bill.

The definition in the principal Act has been in place since 2004 and only minor amendments are now proposed.

5.

Public Hearings The Committee hosted public hearings on 7 and 8 December 2022.
On 7 December, FORSA, Cape Independence Party and STERN made presentations to the Committee.

On 8 December 2022, Dear SA tendered an apology and requested that the Committee considers its written submission in the course of deliberations.

On 8 December 2022, the Committee received the Department’s responses to the written submissions received from the ICRC, a member of the public and Dear SA2.

2 Responses contained in the table above.
45 The following key issues arose during the public hearings: • Objections were raised with the definitions and offences that may unjustifiably impact on the constitutional rights to religious freedom (section 15), freedom of (religious) expression (section 16) and freedom of association (section 18); • That the proposed clause prohibiting the publication of unlawful terrorist content be returned to the Bill as this is may be an important tool for preventing the radicalisation of South Africans; • Objections to the removal of Section 1(4) of the Principal Act; Recommendation to remove the phrase, “including any action during an armed struggle”, it was argued that this would immediately remove any possibility for acts of violence from being condoned under S1(4), and therefore open up the definition to easily prosecute anyone engaging in any acts of violence; ICRC requested Parliament to introduce a humanitarian exemption clause in order to protect impartial humanitarian action carried out by trusted humanitarian and impartial organizations; and • • Definition of Terrorist Activity: many commentators felt the definition was too wide, vague and broad.
6.

Discussions: 6.1 During the hearings FORSA raised concerns regarding the definition of “terrorist activity” in the Bill and recommended that the definition be narrowed.

FORSA argued that an unintended consequence is to criminalize voices of those opposing Government and could limit the rights of religious freedom, freedom of expression and freedom of association.

The Department responded that there is no intention to criminalize voices of those opposing Government processes.
The Department concurs that freedom of religion, expression and association are rights that are protected in terms of the Constitution of the Republic of South Africa, but are not without limitation in terms of section 36 of the Constitution.

Any limitation of these rights must be justified and comply with all the requirements in section 36.

6.2 The Cape Independence Party’s main challenge with the Bill was regarding “self- determination”.
The committee heard the party’s objection to the removal of Section 1(4) as it would create confusion and possibly lead to individuals and organizations that protect or promote self-determination, to be classified as terrorists, which it said defines and protects the constitutional right to self-determination from being incorrectly interpreted as terrorism.

The Department responded that Section 235 of the Constitution recognizes the collective right of the South African people to self- determination.
Communities have rights to pursue self-determination in line with the collective right.

6.3 Stern’s main submission was that in the original amendment Bill, a clause was proposed dealing with the “Prohibition of publication with unlawful terrorism related content” which created an offence related to the publishing, distribution, or circulation of content “intended to directly or indirectly encourage or otherwise induce the commission, preparation or instigation of any offence under this Act”.
The Select Committee was asked that this clause prohibiting the publication of unlawful terrorist 46 content should be returned to the Bill.

Stern was of the view that this clause is an important tool for deterring the publication of such material which has been used to radicalise young South Africans to violent extremist causes and incite them to commit terrorist acts in South Africa.
The Department’s response was that during the public participation process when the Bill served before the Portfolio Committee on Police (PCoP), the Department carefully considered all submissions that cautioned about the constitutionality of the clause and possible infringement on the right of freedom of expression and agreed to propose to the PCoP the deletion of the clause.
It is the Department’s view that prosecutions of publications with terrorist related content, can be prosecuted under section 14 of the principal Act.

7.

Conclusion The Select Committee was satisfied with the engagements on both the written and oral submissions by organisations and individuals on the POCDATARA Bill.

The Committee expressed its gratitude to the public for their engagement on the Bill as it enhanced the public participation process and guided the Committee’s deliberations on the Bill.
Report to be noted.

47 3.

Report of the Select Committee on Security and Justice on the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill [B15 B – 2022] (National Assembly – section 75), dated 12 December 2022.
The Select Committee on Security and Justice, having deliberated on and considered the subject of the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill [B15 B – 2022] (National Assembly – section 75), referred to the Select Committee on Security and Justice on 29 November 2022, classified by the JTM as a section 75 Bill, reports that it has agreed to the Bill without proposed amendments.
Background The Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill, 2022 (“the Bill”), was introduced in Parliament on 19 July 2022, as a bill to be considered in terms of section 75 of the Constitution, 1996 (i.e.

a bill not affecting provinces).

On 18 November 2022, the Portfolio Committee on Police reported the Bill with amendments [B15 B-2022].

The Report and the Bill was considered by the National Assembly on 29 November 2022.
The Bill is now before the Select Committee on Security and Justice for consideration.

In summary, the Bill aims to: (a) bring the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004, in line with developments in international law, (b) give effect to certain Constitutional Court judgments and (c) address certain challenges in conducting investigations and prosecutions.
The Bill also inserts provisions applicable to foreign terrorist fighters in the principal Act as required by the United Nations Counter-Terrorism Executive Directorate (UNCTED), to provide for (a) more severe sentences for those convicted of financing of terrorism, (b) freezing orders in relation to property and (c) the extension of the Extradition Act 67 of 1962.
The Bill also seeks to clarify the public international law obligation to extradite or prosecute persons (non-residents or stateless persons) who commit serious international crimes (in respect of terrorism- related offences) where no other state has requested such extradition.
During a compliance visit by the United Nations Counter-Terrorism Executive Directorate (UNCTED) to South Africa in 2018, the need to make provision in respect of Foreign Terrorist Fighters in the principal Act was expressed by the UNCTED, including the disparity between the sentencing regime in terms of which a more severe penalty may be imposed in respect of money laundering as opposed to terrorist financing, and the lack of any reference to administrative sanctions for violating asset-freezing orders.
In addition to the UNCTED, the Bill addresses the findings made by the 2019 mutual evaluation conducted by the Financial Action Task Force (FATF) of its Anti-Money Laundering and Combating of the Financing of Terrorism (AML/CFT) system.

South Africa rated poorly in the Mutual Evaluation Report (MER) published in October 2021.
To address the technical compliance deficiencies, the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill and the General Laws (Anti-Money Laundering and Combatting Terrorism Financing) Amendment Bill, 2022 (B18-2022) were submitted to Parliament for processing.
The POCDATARA Bill addresses two deficiencies and is a fundamental component to avoid being grey listed and it is critical to address technical compliance deficiencies (updating of legislation) and effectiveness of systems to address the risk of money-laundering.

The deficiencies relate largely to 48 Terrorist Financing (TF), sanctions related to terrorism and TF, freezing orders and the publication of notices by the UN Security Council.
Summary of public participation process to date: On 28 November 2022, The Minister of Police addressed a letter to the Committee requesting that this Bill be dealt with as expeditiously as possible and for the NCOP to pass the Bill this year to prevent South Africa from being grey listed by the global anti-money laundering body, the Financial Action Task Force (FATF).

The first briefing to the Committee by the Deputy Minister of Police was held on 30 November 2022.
The Committee advertised the call for written submissions, and requests for an oral hearing, from 30 November 2022 to Tuesday, 6 December 2022 on Parliament’s media platforms.

The Parliamentary Monitoring Group posted the advert on their website as well.
To ensure that a reasonable opportunity was afforded to stakeholders, in addition to advertising the Bill for comment, the Committee requested the following participants, that made submissions during the NA process, to comment on the B-version of the POCDATARA Bill: 1.

AfriForum – Did not provide a submission.

2.

Banking Association of South Africa – BASA indicated they would not be submitting comment on the B-version of the Bill.

3.
3.

Freedom of Religion in South Africa (FOR-SA) - Submitted a written submission and requested a verbal presentation.

3.

Dear SA – Submitted a written submission and requested a verbal presentation.

4. International Committee of the Red Cross (ICRC) – Submitted a written submission.

5.

The Sussex Terrorism and Extremism Research Network (STERN) – Submitted a written submission and requested a verbal presentation.

The Committee received six written submissions from the public: 7.
Freedom of Religion in South Africa (FOR-SA); 8.

The Sussex Terrorism and Extremism Research Network (STERN); 9.

The International Committee of the Red Cross (ICRC); 10.

An individual, Nelius Pretorius; 11.

Cape Independence Party; and 12.

Dear South Africa To further facilitate meaningful public participation, the Committee hosted public hearings on 7 and 8 December 2022.

On 7 December, FORSA, the Cape Independence Party and STERN made presentations to the Committee.
On 8 December 2022, Dear SA tendered an apology and requested that the Committee considers its written submission in the course of deliberations.

On 8 December 2022, the Committee received the Department’s responses to the written submissions received from the ICRC, a member of the public and Dear SA and received an in depth briefing on the Bill itself from the Institute for Security Studies on 7 December 2022.

Please find the summary of the submissions attached as Annexure A.
Committee consideration of the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill [B15 B – 2022] (National Assembly – section 75).

The Select Committee on Security and Justice received a briefing by the Ministry of Police on the Bill on 30 November 2022.

The Committee held a public hearing on Wednesday, 7 December 2022, with FORSA, the Cape Independence Party, and Dr A Schoeman from STERN.
On Thursday 8 December 2022 the Civilian Secretariat for Police Service (the Department) responded to the written submissions received.

DearSA submitted an apology as they were not able to verbally present on 8 December 2022.

DearSA submitted a written submission to which the Department responded.

The Committee held deliberations on Friday, 9 December 2022.

The Committee considered the Bill and the Committee Report on 12 December 2022.
49 Consensus on the Bill No amendments were proposed for consideration.

The Chairperson put the Bill for consideration: The Bill, as tabled, was supported by the majority of members.

Objections: The Democratic Alliance objected to the Bill.

The Chairperson presented the Committee Report on Public Participation for adoption.

The report was supported by the majority of members.

Objections: The Democratic Alliance objected.

The Chairperson presented the Committee Report on the Bill for adoption.
The report was supported by the majority of members.

Objections: The Democratic Alliance objected.

Minority view The Democratic Alliance objected to the adoption of the Bill indicating that, in their view, the definition of terrorism does not in all cases cover the important elements of the crime of terrorism and that safeguards for humanitarian organisations be included in the Bill.
Recommendation The Select Committee on Security and Justice, having considered the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill [B15 B – 2022] (National Assembly – section 75), referred to it and classified by the JTM as a section 75 Bill, reports the Bill, without proposed amendments for the National Council of Province’s consideration.

Report to be considered.


ANNEXURE A The B-version of the Bill was advertised for public comment on social media platforms from 30 November to 6 December 2022.

In addition, the Committee attempted to contact the organisations who had made submissions to the Portfolio Committee on Police to determine whether or not they had further submissions to make on this version of the Bill.

50 6.

AfriForum – No submission received.

7.


Banking Association of South Africa – BASA indicated they would not be submitting comment on the B-version of the Bill.

8.

DearSA – Submitted a written submission and requested a verbal presentation.

9. International Committee of the Red Cross (ICRC) – Submitted a written submission.

10.

The Sussex Terrorism and Extremism Research Network (STERN) – Submitted a written submission and requested a verbal presentation.
The following organisations and individuals made submissions to the Select Committee: 1.

Freedom of Religion in South Africa (FOR-SA); 2.

The Sussex Terrorism and Extremism Research Network (STERN); 3.

The International Committee of the Red Cross (ICRC); 4.

An individual, Mr Nelius Pretorius; 5.

Cape Independence Party; and 6.

Dear South Africa.

The table below contains the written and oral representations made to the Committee, with the Departmental response thereto.
PROVISION IN QUESTION and COMMENTATOR FORSA Clause 1: Definition of Terrorist Activity SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS Definition of “terrorist activity” – Clause 1 proposes amending the definition contained in section 1 of the principal Act.

However, of concern is the wide definition of “terrorist activity”.

The current definition runs over two (2) pages in length.

It contains various broad phrases that are open to abuse.
This is of specific concern given that recent events have seen where the Department of Health labelled civil society in enabling public organisations comments on the Department’s proposed health regulations as “instigating terrorism” and/or “sabotage”.
involved It is problematic that “‘terrorist activity’… means any act— (a) committed in or outside the Republic, which (viii) creates a serious public emergency situation or a general insurrection in the Republic and (b) which is intended, or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or  The definition of “terrorist activity” rests on two legs: A = Any activity that can cause harm PLUS B = Achievement of any of the intended objectives with that activity EQUALS C = “Terrorist Activity” the  The definition seeks to explain that there needs to be a link between the activity that can cause harm and the intention to achieve the objectives.
If activities lack the necessary terrorist intent which is usually aimed at terrorizing or civil government, it cannot be considered as terrorism under the Act.

If one element is missing, the crime is not established.

The circumstances each particular case, will have to be looked at, to arrive at a conclusion.
Prosecution under POCDATARA is only possible with the written authority of the National Director of evidence of population and PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 51 indirectly, to— (iv) further the objectives of an entity engaged in terrorist activity.” The above is vague, with no specified criteria for either a “serious public emergency” or a “general insurrection”.
As such, it is open to abuse and it is possible that it may be interpreted, as done in the aforementioned example of the Department of Health, to refer to civil society organisations and/or advocacy groups that are involved in facilitating public awareness of, and participation in, the legislative process and/or other Governmental activities.
An unintended consequence of the Bill could therefore be to criminalise the voices of those opposing Government actions and/or curb civil society’s dialogue and actions in what is a participatory democracy.

Given that the religious community is often at the forefront of criticising Government public participation in elections, the legislative process and other civil society activities, is particularly concerning to religious organisations and leaders.
facilitating and/or this The principal Act criminalises involvement with and/or funding organisations that are deemed to be involved with “terrorist activity”.

In light of the above, this is equally concerning to the religious community.
The above definition, being open to abuse, could drastically limit the rights to: religious freedom which protects the right to hold opinions and beliefs and live these out publicly; freedom of expression, which protects all expression apart from propaganda incitement of imminent violence, and the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm; and freedom of association, which protects the right to freely associate with those one wishes to associate with.
for war, Narrowing the definition of what is “terrorist activity” to avoid abuse by a future Government is vital.

The right to religious freedom and freedom of association are, inter alia, protected in the various international covenants / treaties Public Prosecutions.

The function of the NDPP in this instance is to determine that the State has a prima facie case with a reasonable prospect of obtaining a conviction.
The NDPP's decision to authorise a prosecution is therefore an important safeguard as it has to take account of all factors that may influence the prospects of obtaining a conviction.

examples mentioned the Commentator that the actions of civil society organizations that facilitate public awareness into the legislative processes, will therefore not fall within the ambit of the definition of terrorist activity, because it lacks the intent to cause harm.
by  The  The comments regarding acts that creates serious public emergency situations or a general insurrection in the Republic are noted, but yet again these acts will have to be tested against the definition of “terrorist activity” before any prosecution can be instituted.

 There is no intention to criminalize voices of those opposing Government processes.
The that Freedom of Department concurs religion, expression and association are rights that are protected in terms of the Constitution of the Republic of South Africa, but are not without limitation in terms of section 36 of the Constitution.

Any limitation of these rights must be justified and comply with all the requirements in section 36.

 The Committee’s attention is also drawn to the fact that this particular part in the definition was not a subject matter in the Bill.
It has been part of the definition since the adoption of the principal Act in 2004.

The only amendment made to this part was the omission of a comma and insertion of the word “or” in line with technical legislative drafting.

 The Commentator’s recommendation to narrow down the definition of “terrorist activity” is noted, but is not advisable.
Substantive amendments to the definition that would seek to diminish the definition, and that are amendments other than those proposed in the Bill, will most likely compromise the legislative measures that are PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 52 currently in place in the law to prevent and combat terrorism in the country.
Further, if substantive amendments will be made to the definition at this stage in the legislative process, it will have a detrimental effect on other provisions in the Bill and may require substantial consequential amendments to other provisions in the principal Act, that is not advisable.

The RECOMMENDATION: CSPS respectfully requests the Committee, not to amend the definition, outside the parameters of the current amendments proposed in the Bill.
The definition in the principal Act has been in place since 2004 and only minor amendments are now proposed.

and declarations.

It would thus be prudent for the Committee to be take cognisance of South Africa’s international law obligations, when drafting affects fundamental rights.

that directly legislation FORSA argues: Limiting a right: section 7(3) of the Constitution states that a right contained in the Bill of Rights can be limited by section 36, or “elsewhere in the Bill” – i.e.
by an internal limitation clause as is the case in section 16(2).

Interpreting a law: Importantly, in the current situation of drafting a proposed law, section 39(2) of the South African Constitution requires that any law must be interpreted in a way that promotes “the spirit, purport and objects of the Bill of Rights”.
In particular, For SA reiterates the right to Religious Freedom contained in section 15 of the Constitution, the Right to Freedom of Expression contained in section 16 of the Constitution and the Right to Freedom of Association contained in Section 18 of the Constitution.
RECOMMENDATIONS: Clause 1 - Wide definition of terrorist activity: FOR SA proposes that: The definition of “terrorist activity” be narrowed by excluding “viii) creates a serious public emergency situation or a general insurrection in the Republic”.

The criteria to be met for a “serious public emergency situation” and “general insurrection” be expressly stipulated in the Bill.
Alternatively, that:The criteria to be met for a “serious public emergency situation” and “general insurrection” be expressly stipulated in the Bill.

DearSA harbours significant concerns regarding the contents of the Terrorist and Related Activities Amendment Bill.

These concerns are in relation to the lack of concrete and clearly defined definitions of, among others, what constitutes terrorism, as well as terrorist acts and  It is common cause that the principal Act does not meet the demands of FATF.
The Bill the recommendations of and addresses guidance structures, from especially from the 2018 report of the UN- oversight Dear SA Clause Definition Terrorist Activity 1 : of PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 53 severe impact of activities.

The loose interpretation from vaguely-defined and broad terms towards the constitutional rights of South African citizens is problematic.
The Constitution is the supreme law of the land, and no law or proposed amendment can be in conflict with it.

The Bill in its current form has the potential to significantly infringe upon: • Freedom of Expression • Freedom of association • Right to self-determination Counter-Terrorism Executive Directorate and the 2021 mutual assessment report of the Eastern and Southern African Anti-Terrorism Group and the Financial Action Task Force.
 Further, the principal Act has to be brought in line with developments in International Law as well as oversight by the courts.

RECOMMENDATION: The Department recommends that the deletion of section 1(4) remains unchanged.

Of particular concern regarding the right to self- determination is the proposed arbitrary removal of Sections 4 and 5 from Chapter 1 (Definitions).
This section specifically refers to the right to self- determination as promoted and protected by the United Nations, to which South Africa is a member and bound signatory.

There is no rational reason to remove this section if not to blatantly try to persecute anyone legally acting in accordance with the United Nations’ right to self- determination.
that criticises Furthermore, potentially any person, group, or organisation the government or to government policy or expresses opposition positions can be labelled as a terrorist under the Bill due to the clauses on “encouragement” and “indirect facilitation of terrorism”.
Hence the repercussions of this Bill for all NGOs, especially those who act as watchdogs and guardians of constitutional and democratic processes, are debilitating and destructive Any additional amendments, primarily that which potentially conflicts with citizens’ constitutional and criminalises them for exercising their hard-won democratic processes, must be written with unambiguous and plain definitions.
freedoms rights and South Africa has existing comprehensive and effective legislation to prosecute criminal and terrorist activity.

As presented by Dr A Schoeman (STERN), extremist and terrorist groups and individuals including Boeremag, PAGAD, Henry Okah, Thulsie twins and others, were successfully intercepted, apprehended and charged under terrorism using the existing, un- amended POCDATARA Act and other existing legislation.

1.
1.

We believe that the POCDATARA Bill and proposed amendments provide no additional PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS benefit to curbing terrorist and terrorist activities, as the current Act has proven to be extremely effective.

54 the and that Combating also believe 2.


We current POCDATARA Act, used in conjunction with the recently adopted General Laws (Anti-Money Laundering Terrorism Financing) Amendment Bill [B 18B-2022], more than adequately meets the demands of the Financial Action Task Force.

Left un-amended, the POCDATARA Act will not have a negative impact on the potential grey-listing of South Africa.
Cape Independence Party Clause 1: Definition of Terrorist Activity We strongly recommend that the POCDATARA Bill be sent back to the drawing board for reconsideration regarding its content, overall desirability and necessity.

In “Amendments B-15B” pg6 a)(iiiA), it states that terrorism is “any act”, which “is calculated to overthrow the government…”, and such terms as “overthrow” are left open to interpretation without any context of self-determination.
This could result in the most basic democratic process of a political party in favour of self-determination the electorally national ruling party being interpreted as an act of terrorism.

defeating/“overthrowing” Furthermore, the above peaceful political acts taken in conjunction with pg7 b)i) which states terrorism is any act which “threatens the unity or territorial integrity of the Republic”, could also misconstrue self-determination as terrorism.
And on pg7 b)ii) the net is cast so unreasonably wide so as to include the sharing of any ideas which “may cause feelings of insecurity”… in a “person, government.. or institution.” The above is made even worse on pg7 c) where it confuses matters further by stating that terrorism is any activity as contemplated above “which is committed… for the purpose of the advancement of a… political, religious, ideological or philosophical motive, objective, cause or undertaking.” The principles of international order were set out in a 2018 report (A/HRC/3763) to the General Assembly of the United Nations and the Human Rights Council.
Section 14(h) categorically states that the principle of territorial integrity has external application and a state cannot use the  Section 235 of the Constitution recognizes the collective right of the South African people to self-determination.

Communities have rights to pursue self-determination in line with the collective right.
 Whilst the Bill of Rights protects basic human rights such as right to life, right to freedom and security of the person, it does not protect the right to self-determination.

 It follows that the right to self-determination cannot be protected at the cost of human rights.

 For an act to be regarded as a “terrorist activity” there has to be a link between the act that can cause harm and the intention to achieve the objectives.
Any organisation that pursues the collective right to self- determination in a peaceful manner, would under no circumstances perpetrate any of the actions described in paragraph (a) of the definition and would therefore never be in the position where it could potentially be considered to be involved in terrorist activity.
It should be noted that the activities described in paragraph (a) of the definition would in itself be regarded as very serious criminal offences, and if pursued in the exercise of the right to self-determination, would not be a defence against those offences, despite section 1(4) of the principal Act.
 PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 55 that  Section 1(4) of the principal Act does not protect an organisation that pursues self- determination through the commission of the acts mentioned in the definition through means threaten or harm civilian populations or non-military combatants, from a charge of terrorism.
Such acts would not constitute a legitimate pursuit of self- determination, “in accordance with the principles of international law, especially international humanitarian law”.

The RECOMMENDATION: CSPS respectfully requests the Committee, not to amend the definition, outside the parameters of the current amendments proposed in the Bill.

The definition in the principal Act has been in place since 2004 and only minor amendments are now proposed.
 The comments by the Commentator are noted, but do not take into account all of the elements of the crime that have to be proven for a successful prosecution.

The RECOMMENDATION: CSPS respectfully requests the Committee, not to amend the definition, outside the parameters of the current amendments proposed in the Bill.

The definition in the principal Act has been in place since 2004 and only minor amendments are now proposed.
principle of territorial integrity to deny or hollow out the right to self-determination.

It is as if the above amendments have been constructed either with malicious intent or without any conscious understanding of the right to self-determination, the right to free speech, political protest, and a basic principle of democracy which is to protect the right to a plurality of opinions and opposition voices which keep a government accountable.
The above is obviously not an unacceptable outcome or interpretation, but one that becomes possible with the inclusion of ambiguous and broad definitions, and by the removal of any reference to the right to self-determination.

The absurdity of the proposed amendments to the POCDATARA Act is that, if enacted in its current form, many organisations and their supporters could now potentially be classified as terrorists.
request the Select Therefore, we kindly Committee on Security and Justice to reconsider the proposed amendments, to ensure that the right to self-determination remains in the Act, that any ambiguity is removed which may threaten South African democracy, free speech, the right to report and share information freely, protest the government, and oppose its policies.

This amendment bill is very broad and should be scrapped in its entirety.
The specific concerning parts mentioned start from page 113: q) by the substitution in subsection (1) for the definition of ''terrorist activity'' of the following definition: ii) intimidate, or to induce or cause feelings of insecurity within, the public, or a segment of the public, with regard to its security, including its economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population; [or] (iii) unduly compel, intimidate, force, coerce, induce or cause a person, a government, the Nelius Pretorius Clause 1: Definition of Terrorist Activity 3 Page 7 of B version of the Bill.
PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 56 general public or a segment of the public, or a domestic or an international organisation or body or intergovernmental organisation or body, to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles ICRC in Clause 1: Deletion of Section 1(4) of the Act Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action armed during an the struggle, or exercise furtherance of their legitimate right national to self- liberation, determination and independence against or colonialism, or occupation aggression or domination by alien or foreign forces, in accordance with the principles of law, international especially international humanitarian including purposes and principles of the Charter of the United the Nations on Declaration Principles of International concerning Law Friendly Relations Cooperation and law, the and South Africa is not the only State whose counter- terrorism legislation presents such a clause (so called ’IHL Saving clause’).
For example, the counter-terrorism legislation of Ethiopia, Chad, the UK, Ireland, New Zealand and Canada, present similar clauses.

The IHL Saving clause is also recommended by the African Union Model Anti-Terrorism law4 and by other regional organizations such as the European Union.

Furthermore, United Nations Security Council Resolution 2462 and 2482 (2019) demands States to ensure that their counter-terrorism measures comply with IHL.
The purpose of an IHL Saving clause is to separate the law applicable to the conduct that occurs in peacetime from the conduct that occurs during an armed conflict.

If the conduct qualified as ‘terrorist’ occurs in peacetime, IHL would not apply, and the situation would remain governed by domestic law, including by the relevant counter-terrorism by international human rights law.
Conversely, if the conduct occurs within the context of an international or a non-international armed conflict, IHL is better suited to govern the situations.

legislation, and Deleting South Africa’s IHL Saving clause (i.e., the current section 1 (4) of the POCDATRA), would mean there is no longer separation of the legal framework for conduct that occurs within an armed conflict, and the legal framework for the conduct that occurs in peacetime.
This would be inconsistent with South Africa’s international obligations which has accepted IHL as the legal framework governing armed conflicts In engagements with the Parliamentary Portfolio Committee on Police during their consideration of the Amendment Bill, it became clear that there was a concern that the deletion of s1(4) of the POCDTARA Act was a recommendation in the Mutual Evaluation Report of the Financial Action Task Force (“FATF”).
The deletion of s1(4) stems from the following: Aligning the principal Act to developments 3. in International law since its adoption eg.

Geneva Conventions and Additional Protocol I and II (Relating to the Protection of Victims of International and Non- International Armed Conflicts).

4.
The Financial Action Task Force (“FATF”) Mutual Evaluation Report, Oct. 2021 assessment the FATF Although team considered the view that the clause did not constitute a limitation on the ambit of the crime of terrorism as it derived from the Geneva Conventions, it concluded that the clause narrows down the scope of the terrorist financing offence in section 4 in its comparison to the requirements of Articles 2 and 6 of the United Nations Convention on Suppressing the Financing Terrorism that was adopted in 1999.
In particular, Article 6 of this Convention requires countries to adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of the Convention (terrorist financing offences) are under no circumstances justifiable philosophical, ideological, racial, ethnic, religious or other similar considerations.
political, on The FATF considered this as a major factor in their assessment of the recommendation on the criminalization of terrorist financing.

It also played a role in the assessment of the country’s ability to provide international co- operation in extradition matters relating to terrorist financing offences.

RECOMMENDATION: The Depart-ment recommends that the deletion of section 1(4) remains unchanged.
PROVISION IN QUESTION and COMMENTATOR among States in accordance with the said Charter, shall not, for reason, any for including of purposes or prosecution extradition, be considered as a terrorist activity, as in defined subsection (1).

SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS The ICRC response is as follows: 57 • Unlike the instruments IHL, FATF are non-binding.

Recommendations They do not carry the same value as international as relevant counter-terrorism conventions or IHL.
As such, the Government of South Africa must favour provisions in its national legislation that comply with IHL.

such • for ICRC • The ICRC, in its capacity as guardian of IHL, would like to respectfully submit that the FATF approach towards IHL as well as its interpretation of the 1999 International Convention the Suppression of the Financing of Terrorism are incorrect.
The FATF argues that by excluding certain actions from the scope of POCDATARA, the IHL Savings clause unduly restricts the the offence of financing scope of terrorism.

The respectfully disagrees with this observation.

From the ICRC’s perspective, incorporating an IHL Saving Clause in counter-terrorism completely aligns with the requirements of the 1999 Convention.

Indeed, the 1999 Convention includes provisions expressly excluding certain acts from the scope of financing terrorism offences.
Article 2 of this elements instrument already limiting the scope of crimes based on IHL.

As such, the IHL Saving clause in s1(4) of POCDATARA, amendments together with previously suggested by the ICRC, is perfectly the 1999 Convention and cannot be considered as restricting the scope of counter-terrorism crimes under international counter- terrorism conventions.
It is also important to highlight that incorporating an IHL Saving clause in counter-terrorism legislation does not prevent the State from prosecuting the offence of ‘financing of terrorism’ and ‘participation to a terrorist group’.
For instance, current s1(4) of POCDTARA line with contains two the in • PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 58 actionsconsisting as amended by the ICRC’s suggestion would still allow South Africa to of prosecute channeling funds to non-State armed groups for the purposes of committing acts of terrorism against the civilian population and/or civilian objects.

Such acts would not be protected by the IHL Saving clause.
Cape Independence Party Clause 1: Deletion of Section 1(4) of the Act In particular, we object to the removal of Chapter 1.

Subsection 4, which defines and protects the constitutional right to self-determination from being incorrectly interpreted as terrorism.

We note that the Red Cross, DearSA, as well as Afriforum, amongst others, have also raised serious concerns surrounding the dangers of the removal of this subsection.
This section was intentionally included in the original Act, and Interpretation”, for the exact purpose of making it clear to all, the public and the courts, that self- determination is NOT to be defined or interpreted as terrorism.

There can be no logical reason to remove this entire section.

Its removal creates confusion within the intent of the law, and thereby suggests that acts of self-determination could be confused as acts of terrorism.
“Definitions under Since its very inception in the Act, Chapter 1.

Subsection 4 has helped to define the law surrounding terrorism and to help ensure that acts of self-determination are not misinterpreted as terrorism.

It therefore provided clarity and the correct interpretation to the law.

Nothing is gained by its removal.

Its removal is arbitrary and dangerous as it could lead to the persecution of acts protected in the constitution, such as self-determination.
In complete opposition to the above, the removal of Subsection.

4 does nothing to strengthen the definition of terrorism - as the Bill was intended to do - instead it weakens the definition, provides less clarity, and creates confusion the interpretation of the law.

If there is a specific part of the subsection that the Committee is concerned with then that specific part should be addressed.
But removal of the entire subsection protecting the right to self- determination goes intended interpretation of the law and may result in conflict with Section 235 of the South African constitution, as well as international law.

against the in  The wording “including any action during an armed struggle”, means that these acts are excluded from the definition of terrorist activity and shall not be considered as a terrorist activity.
 The deletion of s1(4) was a recommendation in the Mutual Evaluation Report of the FATF.
 Although the FATF assessment team considered the view that the clause did not constitute a limitation on the ambit of the crime of terrorism as it derived from the Geneva Conventions, it concluded that the clause narrows down the scope of the terrorist financing offence in section 4 in its comparison to the requirements of Articles 2 and 6 of the United Nations Convention on Suppressing the Financing that was adopted in 1999.
In particular, Article 6 of this Convention requires countries to adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of the Convention financing offences) are under no circumstances justifiable on political, philosophical, ideological, racial, ethnic, religious or other similar considerations.
(terrorist  The FATF considered this as a major factor  the in their assessment of recommendation on the criminaliza-tion of terrorist financing.

It also played a role in the assessment of the country’s ability to provide international co- operation in extradition matters relating to terrorist financing offences.

A limited narrowing of the exemption, as proposed by therefore not the commentator, would address the underlying concern that was pointed out in the mutual evaluation report.
PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 59 RECOMMENDATION: The Depart-ment recommends that the deletion of section 1(4) remains unchanged.

Recommendation that arose from Cape the Public Independence Party during Hearings: The FATF recommendations states: “Generally, the criminalization of TF in South Africa is broadly consistent (84) with most of the TF Convention.
The POCDATARA, however, does exclude from the definition of terrorist activity certain acts committed during an armed struggle.

(85) This exemption therefore narrows the scope of the TF Convention.” (FATF Recommendations: reference #84 and #85) referred First of all the FATF congratulates South Africa in its recommendations on pg 165, reference #84, stating that South Africa is “broadly consistent with most of the TF Convention”.
Then when one looks at the POCTDATARA S.1(4) FATF to Recommendations, reference #85, the phrase they state is of concern to them is: “however, (The POCDATARA) does exclude from the definition of terrorist activity certain acts committed during an armed struggle.
This exemption therefore narrows the scope of the TF Convention.” the in Let us now look at the entire POCDATARA S.1(4), referred to in the FATF Recommendations as, reference #85: “(4) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during an armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self-determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces, in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the Declaration on Principles of International Law concerning and Cooperation among States in accordance with the said Charter, shall not, for any reason, for purposes of prosecution or including extradition, be considered as a terrorist activity, as defined in subsection (1).” the United Nations and Relations Friendly PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 60 It is the aspect of violence that is the fundamental issue.
And according to the FATF’s very own recommendations, they too chose to specifically highlight and identify this one specific phrase of an “armed struggle” within S.1(4) that was of concern to them.

If then, one was to remove the phrase, “including any action during an armed struggle”, this would immediately remove any possibility for acts of violence from being condoned under S1(4), and therefore open up the definition to easily prosecute anyone engaging in any acts of violence.
This would also clearly limit any acts of self- determination to remain purely within the legitimate realm of the peaceful and democratic, political process.

to overthrow However, the inverse is true if one removes the entire clause S.1(4), then the broad terminology the such as “is calculated government” (Amendments: a) iiiA) could then interpret peaceful, political, democratic acts of self-determination to defeat/“overthrow” a government, by winning elections, as terrorism.
Just as acts of violence are unacceptable, this would not be an acceptable outcome either, nor would it be consistent with the laws listed above that protect the right to self-determination.

seek that that faith and willingness Therefore, we believe the proposed amendment does a very good job of satisfying the concerns of the FATF, thereby showing South Africa’s good to compromise and comply.
It also preserves the original Acts intention to ensure that self- determination is clearly defined and not mistakenly interpreted as terrorism, and at the same time, does not unnecessarily threaten or long-standing constitutional undermine right.
this in clause ICRC : Parliament to consider including a the Amendment Bill to for provide exemption from criminal sanctions of impartial The ICRC is also concerned by the absence of a clause within POCDATRA to exempt from criminalization exclusively humanitarian action carried out by humanitarian and impartial organizations.

The current wording of the Bill may unintentionally criminalize the provision of humanitarian assistance.
For instance, section 3 (2) of POCDATRA could potentially criminalize The inclusion of a humanitarian exemption clause is not supported due to the following: The Terror Financing provisions in the Bill are derived the Suppression of the Financing of Terrorism (TF).

The crime only applies to financing terrorist entities and activities.
the Convention from for PROVISION IN QUESTION and COMMENTATOR humanitarian assistance provided by organizations that operate with State consent, reference is made to: Section 3(2) of the Act: (2) Any person who- (a) provides or offers to any provide weapon to any other person for use by or for the benefit of an entity; (b) solicits support for or gives support to an entity; provides, (c) or receives in participates training or or instruction, recruits an entity to receive training or instruction; (d) recruits any entity; (e) collects or makes a document; or (f) possesses a thing, connected with the engagement a terrorist activity, and who knows or ought reasonably to have known or suspected that such weapons, soliciting, training, recruitment, document or thing is so is connected, guilty of an offence with connected terrorist activities.
in STERN SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 61 provision of medical assistance to wounded people in areas controlled by a Non-State Armed Group.

the that such potential criminalization The potential criminalization of exclusively humanitarian activities does not accord with the letter and spirit of IHL.

Article 3 Common to the Geneva Conventions provide that impartial organizations may offer their services for the benefit of the victims of armed conflict.
the humanitarian Impartiality requires services are offered without any adverse distinction based on criteria race, nationality, religion or ethnicity.

In order to of avoid humanitarian aid, it is important to provide for a ‘humanitarian exemption clause’ in counter- terrorism legislation.

Such clauses have been included in the counterterrorism legislation in various jurisdictions such as Ethiopia, Chad, Philippines, Switzerland, the United Kingdom, New Zealand and Australia.
Like the IHL Saving clause, the humanitarian exemption clause is also recommended by the African Union Model Law on Counter-terrorism10 other organizations such as the European Union.
Furthermore, United Nations Security Council resolution 2462 (2019) urges States “when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.
and by The ICRC appeals to Parliament to consider including a clause in the Amendment Bill to provide for exemption from criminal sanctions of impartial humanitarian assistance provided by organizations that operate with State consent.

As currently worded, section 3(2) of POCDATRA could criminalize the work of exclusively humanitarian and impartial organizations such as the ICRC.
Such a clause would entrench in law a targeted approach in dealing with the threat of terrorism as recommended under the Financial Action Task Force1 (FATF) regulations.

In the original amendment Bill, a clause was proposed dealing with the “Prohibition of publication with unlawful terrorism related the Non-Profit Sector in ended reference The ICRC renders humanitarian assistance to victims of armed conflicts, and these cannot remotely fall within the ambit of the TF.
Open to humanitarian organisations would open the door to terrorist entities impersonating such organisations.

Immunities recognized for the ICRC in terms of international law, exempt if from having to testify in criminal proceedings of tribunals and domestic courts.

Treatment of victims would constitute proof that they were in fact victims of war crime sought to be prosecuted.

Giving evidence of such, the ICRC would either not be allowed into conflict zones or being itself targeted.
Immunity exists, due interests of alleviating human suffering that outweigh the giving of evidence.

This is entirely different from exempting the ICRC from the provisions of a criminal offence.

There is therefore no necessity for an exemption as per the ICRC submission.

The National Director for Public Prosecutions must authorize all TF prosecutions and it is therefore sufficiently safeguarded against any potential abuse.
the to RECOMMENDATION: The Department recommends that an Exemption clause not be included in the Bill.
 The clause related to the prohibition of any publications with terrorist related content in PROVISION IN QUESTION and COMMENTATOR Deletion of Clause 3 in original version of the Bill SUBMISSION/RECOMMENDATION content” which created an offence related to the publishing, distribution, or circulation of content “intended to directly or indirectly encourage or otherwise induce the commission, preparation or instigation of any offence under this Act”.
This clause was removed from the Bill in the Portfolio Committee’s deliberations, which we believe is a mistake and will undermine South African’s security.

The removal of this important clause likely stems from concerns that this will overly prohibit freedom of expression and lead to abuses by the state.
However, public comments making these claims fail to understand the boundaries and specificity of the law when it comes to the proposed criminalisation of terrorist content Stern refers to Section 16 of the Constitution in relation to Freedom of Speech and argues the Constitution clearly states that propaganda for war and the incitement of violence do not qualify as protected speech.
Considering the security threat that this type of material poses to the country and South Africans, the incitement of violence and should rightfully be criminalised.

Many countries have criminalised these acts for this reason.

Further, legislation places clear and appropriate limits on the use of these powers by limiting the promotion of offences criminalised under the Act and tying it to the extensively defined definition of terrorist activity.
Most importantly, the current definition of terrorist activity includes the following caveat: terrorist-related acts the to it is committed (3) For the purposes of paragraph (o)(vi) and (vii) of the definition of “terrorist activity”, any act which in pursuance of any advocacy, protest, dissent or industrial action and which does not intend the harm contemplated in paragraph (o)(i) to (v) of that definition, shall not be regarded as a terrorist activity within the meaning of that definition.
This means that the definition is limited to the perpetration of terrorist acts criminalised under international law (the Convention Offences) and the proposed clause prohibiting the publication of terrorism content takes this into account.

This places an appropriate limit on the application of the law and will prevent abuses of the legislation to suppress legitimate free speech and dissent.
Any speech which does not advocate for or incite 62 DEPARTMENT’S RESPONSE AND RECOMMENDATIONS the original amendment Bill, sought to create an offence related to the publishing, distribution or circulation of content to encourage or induce the commission of any offence under the principal Act.
(PCoP), on Police carefully considered that cautioned about  During the public participation process when the Bill served before the Portfolio the Committee Department all the submissions constitutionality of the clause and possible infringement on the right of freedom of expression and agreed to propose to the PCoP the deletion of the clause.

It is our considered opinion that prosecutions of publications with terrorist related content, can be prosecuted under section 14 of the principal Act.
 Examples of problematic provisions in the clause: • 3A(2)(d): “A person commits an offence if he or she, in respect of a publication with unlawful terrorism related content— … (d) provides a service to others that enables them to obtain, read, listen to, or look at such a publication, or to acquire it by means of a gift, sale or loan.” listen to, or  Provision is onerous, especially for electronic communications service providers – the offence lies in “enables them to obtain, read, look at such a publication” whereas such a provider may only provide the access mechanism but has no control over what content is accessed through its service.
If the provider for example, enables broad internet access, and the user then chose to search and access prohibited material, the provider will be on the wrong side of the law, and the provision is therefore too wide.
• 3A(5)(b): ““A person charged with this committing an offence under section and section 3(2)(e) may raise as a defence— PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 63 Convention offences will consequently not fall within the remit of this legislation.
Concerns that the inclusion of this clause will restrict civil society groups and legitimate free speech fail to understand the boundaries of this legislation and the built-in restrictions to protect legitimate dissent.

The Select Committee is asked that this clause prohibiting the publication of unlawful terrorist content should be returned to the Bill.
This is an important tool for deterring the publication of such material which has been used to radicalise young South Africans to violent extremist causes and incite them to commit terrorist acts in South Africa.

An intervention at this point will disrupt the chain leading from the radicalisation of an individual to the perpetration of terrorist acts.
This is an important intervention which has the potential to prevent the loss of life and keep ordinary South Africans safe.. … (b) the person's action or possession was for the purposes of— (i) journalist; or (ii) carrying out work as a academic research.".

 The provision on carrying out work as a “journalist” was identified as problematic.

There is no specific definition of “journalist” in South African law.

Mainstream journalists are not registered anywhere and are opposed to registration.
The only safety net is that of the Persombudsman.

For example, any person in possession of a cellphone device and a blog, can publish unlawful terrorism related content and is considered a journalist.

It is therefore uncertain whom should be considered as a journalist for purposes of the defence.

The defence of journalism was also debated by the previous Portfolio Committee on Police, the Critical in case of Infrastructure Protection Act, and the defence was not inserted.
 The examples aforementioned of complexities in the clause, as well as possible constitutional and possible challenges infringement of the right of freedom of expression, led to the proposal to the PCoP to delete the clause, that was accepted by the PCoP, and we respectfully make the same proposal to the Select Committee, not to reinstate the clause, because the offence can be successfully prosecuted under section 14 of the principal Act.
FORSA Subsection 3 of the definition of terrorist activity The addition of a phase such as “is calculated to overthrow the government”, will fall within the sections mentioned in subsection 3.

If you have “advocacy” that is deemed by the State as being “to overthrow the government”, subsection 3 offers no protection.

RECOMMENDATION: The Depart-ment recommends that the deletion of clause 3A remains unchanged.
 The proposed insertion related to overthrowing of a government must be read in conjunction with paragraph (a)(viii) of the definition: “creates a serious public general emergency insurrection in the Republic”.

The title of the Act is Protection of Constitutional Democracy against Terrorist and Related Activities Act.
Clearly in a constitutional democracy, overthrowing the government situation or a PROVISION IN QUESTION and COMMENTATOR SUBMISSION/RECOMMENDATION DEPARTMENT’S RESPONSE AND RECOMMENDATIONS 64 the order constitutional or by unconstitutional means such as crippling the country or by means of violence, should be a crime.

ISIS in Syria has established its own government by means of violence.

 It is correct that subsection (iiiA) will fall within the ambit of subsection 3.
Whether the “advocacy” will be deemed as a harmful action to overthrow the government, is a question on whether the advocacy is violent in nature and aimed at endangering the life or bodily integrity of persons.

In addition to this, the advocacy must be intended to threaten the unity and territorial integrity of the Republic and intimidate the public in a manner that they feel unsafe.

The State must prove this.


If not proven, the “advocacy” enjoys protection under subsection 3. the The RECOMMENDATION: CSPS respectfully requests the Committee, not to amend the definition., parameters of the current amendments proposed in the Bill.

The definition in the principal Act has been in place since 2004 and only minor amendments are now proposed.

outside